Torno v. Hayek

• Decision Date: 25 May 2006
• Docket Number: No. 23483-5-III.,23483-5-III.
• Court: Washington Court of Appeals
• Parties: Darla TORNO and Robert Torno, wife and husband and the marital community comprised thereof, Appellants, v. David HAYEK and Jane Doe Hayek, husband and wife and the marital community comprised thereof; and Sandra Boyle and William Boyle, wife and husband and the marital community comprised thereof, Respondents.

135 P.3d 536

133 Wn. App. 244

Darla TORNO and Robert Torno, wife and husband and the marital community comprised thereof, Appellants, v. David HAYEK and Jane Doe Hayek, husband and wife and the marital community comprised thereof; and Sandra Boyle and William Boyle, wife and husband and the marital community comprised thereof, Respondents.

No. 23483-5-III.

Court of Appeals of Washington, Division 3.

May 25, 2006.

COPYRIGHT MATERIAL OMITTED

Patrick G. McMahon, David L. Force, Attorneys at Law, Wenatchee, WA, for Appellants.

Aaron L. Lowe, Aaron L. Lowe & Associates PS, Spokane, WA, for Respondents.

BROWN, J.

¶ 1 Darla Torno suffered two car accidents within two weeks. The other drivers, David Hayek and Sandra Boyle, admitted liability but disputed damages. The jury's special verdict totaled $6,220. Ms. Torno contends the court erred in making certain evidence rulings, instructing on probable cause and pre-existing injury, and entering a judgment on a low verdict. We conclude the trial court did not abuse its discretion in the evidence rulings. Considering the instructions in light of the evidence, we hold it correctly allowed the parties to argue their case theories without prejudice. Finally, the judgment was within the evidence range. Accordingly, we affirm.

FACTS

¶ 2 On May 22, 2000, Darla Torno and David Hayek were involved in an admitted liability car accident. On June 4, 2000, Ms. Torno was involved in another admitted liability car accident with Sandra Boyle. Ms. Torno sued the Hayeks and Boyles for injuries allegedly caused by the two accidents. Ms. Torno unsuccessfully moved to exclude similar injury evidence and medical treatment for a 1993 car accident.

¶ 3 In other relevant evidence rulings, the Hayeks and Boyles successfully moved to strike the perpetuated testimony of Cary Simonds, D.D.S., one of Ms. Torno's treating dentists, regarding causation of her temporomandibular jaw (TMJ) complaints, despite "[Ms. Torno's] convincing recollection of history as it related to being fixed and stable prior to the accidents." Report of Proceedings (RP) at 642-43. Dr. Simonds conceded had he known he would be opining about causation in future litigation, he would have wanted to review her prior medical records. Additionally, the court found his proposed future treatment testimony speculative because Dr. Simonds deposed he had not seen Ms. Torno in two and one-half years, did not know her present condition, and did not know what, if any, future treatment would be necessary. Finally, the Hayeks and the Boyles successfully argued to exclude opinion testimony from Arthur Rudd, D.D.S., regarding Ms. Torno's future treatment, based partly on Dr. Rudd's testimony:

Q In your opinion what sort of future care or surgeries would Ms. Torno have to have, or not have?

A I don't know, because I'm awaiting [Dr. Simonds'] evaluation and expertise and the results of the MRI, which is critical in her case.

Q Okay. What sort of future care do you have in store for Ms. Torno, if any?

A I have not seen her since 3/10 of '03. I have no idea where she's at right now or what treatment she's undergoing or not undergoing.

RP at 378-79.

¶ 4 The court allowed Dr. Rudd's and Dr. Simonds' TMJ diagnosis evidence. Ms. Torno called James Bingham, M.D., who saw her for cervical strain, TMJ, and fibromyalgia complaints after the two accidents. Dr. Bingham opined Ms. Torno's cervical strain was caused by "one or both accidents" and she was "likely to have ongoing problems for the duration." RP at 216, 257. He testified Ms. Torno's shoulder surgery, physical therapy, office visits and MRI were "[r]easonable and necessary." RP at 222. Gina Yaritz, D.O.C., detailed Ms. Torno's chiropractic treatment, testifying, "the two auto accidents caused the injury that she's suffering from today." RP at 278.

¶ 5 The defense called Thomas Miskovsky, M.D., Stephen Sears, M.D. and Daniel Skinner, D.D.S. to counter Ms. Torno's evidence. Dr. Miskovsky opined Ms. Torno had a cervical strain related to the accidents, but treatment merely required three weeks to three months. He estimated $2,691 as reasonable and necessary treatment expenses. He characterized her ongoing pain complaints as an effect of fibromyalgia, stating, "I don't think that her ongoing symptoms are related to physical injury." RP at 339. Dr. Sears testified Ms. Torno suffered no appreciable injury and did not aggravate previous injuries in the accidents: "There were no reproducible abnormalities that I could point to indicating that there was something wrong with her. She basically has subjective complaints. . . . Without those subjective complaints she's normal." RP at 519. Dr. Skinner opined Ms. Torno's TMJ problems were not caused by the recent accidents, but may have been aggravated by them.

¶ 6 Arguing multiple causation theories existed, Ms. Torno unsuccessfully proposed a modified proximate cause instruction:

The term "proximate cause" means a cause which in a direct sequence produces the injury complained of and without which such injury would not have happened.

There may be more than one proximate cause of the same alleged injury. It is not a defense, however, that some other cause or the act of some other person who is not a party to this lawsuit may also have been a proximate cause.

Clerk's Paper's (CP) at 71. Instead, the court gave the standard proximate cause instruction based upon 6 WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 15.01, at 181 (5th ed. 2005) (WPI):

The term "proximate cause" means a cause which in a direct sequence unbroken by any new independent cause, produces the injury complained of and without which such [sic] the injury would not have happened.

There may be more than one proximate cause of an injury.

CP at 86.

¶ 7 Over Ms. Torno's objection, the court instructed on pre-existing medical conditions:

If you find that:

(1) before this occurrence the plaintiff had a bodily condition that was not causing pain or disability; and

(2) because of this occurrence the pre-existing condition was lighted up or made more active, then you should consider the lighting up and any other injuries that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.

There may be no recovery, however, for any injuries or disabilities that would have resulted from natural progression of the pre-existing condition even without this occurrence.

CP at 88.

¶ 8 The jury's special verdict specified $3,000 Past Economic Damages, $2,000 Non-Economic Damages, and $1,220 Future Economic Damages. Ms. Torno did not seek a ruling that the $6,220 total verdict was too low before she appealed.

ANALYSIS

A. Evidence Rulings

¶ 9 The issue is whether the court erred in certain evidence rulings — first, excluding Ms. Torno's proffered future treatment and causation testimony, and second, allowing the jury to hear evidence of Ms. Torno's pre-existing injuries.

¶ 10 We review evidence rulings for an abuse of discretion. Vasquez v. Markin, 46 Wash.App. 480, 491, 731 P.2d 510 (1986). Discretion is abused if "no reasonable person would take the position adopted by the trial court." Stevens v. Gordon, 118 Wash.App. 43, 51, 74 P.3d 653 (2003) (citing Mayer v. City of Seattle, 102 Wash.App. 66, 79, 10 P.3d 408 (2000)).

¶ 11 First, medical testimony must be based upon a more probable than not basis. Carlos v. Cain, 4 Wash.App. 475, 477, 481 P.2d 945 (1971) (citing Miller v. Staton, 58 Wash.2d 879, 886, 365 P.2d 333 (1961)). The court excluded Dr. Rudd's and Dr. Simonds' future treatment testimony because they had not seen Ms. Torno in about two and one-half years and did not know her current condition. Each testified he could not opine on her future care or surgeries. Therefore, the court did not abuse its discretion in excluding future treatment testimony. See id.; see also ER 702 (expert testimony must assist the trier of fact to understand the evidence or determine a fact in issue).

¶ 12 The court excluded Dr. Simonds' TMJ causation testimony because it was based exclusively on Ms. Torno's recollection that the condition was fixed and stable before the accidents. Dr. Simonds conceded he would need to review her medical records in order to offer a causation opinion in a trial setting. Thus, the trial court had tenable grounds for excluding the causation testimony. See Carlos, 4 Wash.App. at 477, 481 P.2d 945 (causal relationship must rise to more probable than not basis). Therefore, the trial court did not err in excluding the testimony on foundation grounds.

¶ 13 Second, Ms. Torno contends the court erred in allowing the defense to present pre-existing injury evidence. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. "Evidence tending to establish a party's theory, or to qualify or disprove the testimony of an adversary, is relevant evidence." Hayes v. Wieber Enters., Inc., 105 Wash.App. 611, 617, 20 P.3d 496 (2001). However, relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice. ER 403.

¶ 14 Ms. Torno's pre-existing injuries mirrored her alleged injuries from the accidents in 2000. Thus, evidence of Ms. Torno's pre-existing conditions was highly relevant to the defendants' theories on causation; they argued Ms. Torno's injuries were caused by the 1993 accident. Accordingly, the court did not abuse its discretion in finding this evidence relevant and sufficiently probative to overcome any unfair prejudice.

B. Instructions

¶ 15 The issue is whether the court erred in refusing Ms. Torno's modified proximate cause jury instruction and giving the additional pre-existing injury...