Welborn v. Snohomish Cnty.

• Decision Date: 08 November 2021
• Docket Number: 82235-7-I
• Court: Washington Court of Appeals
• Parties: CAROLYN WELBORN, TORI FOLEY, and GABRIEL MEEKINS, Appellants, v. SNOHOMISH COUNTY, and JASON TONER and MELISSA TONER, a married couple, Respondents.

CAROLYN WELBORN, TORI FOLEY, and GABRIEL MEEKINS, Appellants,
v.
SNOHOMISH COUNTY, and JASON TONER and MELISSA TONER, a married couple, Respondents.

No. 82235-7-I

Court of Appeals of Washington, Division 1

November 8, 2021

UNPUBLISHED OPINION

Dwyer, J.

Carolyn Welborn filed suit alleging that she developed certain psychological and physical conditions after being aggressively confronted by an off duty Snohomish County Sheriff's deputy. A jury returned a defense verdict. On appeal, Welborn challenges a trial court ruling excluding evidence that her encounter with the deputy resulted in lost wages. Welborn and her co-plaintiffs also assert that the trial court erred by denying them a new trial based on the court's imposition and enforcement of time limits on the parties during trial.

Because the jury rejected Welborn's claim that the deputy's conduct proximately caused Welborn's injuries, Welborn cannot establish that she was prejudiced by the exclusion of evidence that her injuries further resulted in lost wages. In addition, appellants fail to establish that the trial court abused its discretion by denying a new trial. Accordingly, we affirm.

1

I

In February 2018, Carolyn Welborn was employed by Condominium Management as a community manager. In that role, Welborn would help homeowner and condominium association boards enforce their rules and regulations, including by regularly "driv[ing] through a community looking for things . . . that are not in compliance."

On February 8, 2018, Welborn conducted such a "drive-through" of the Copper Station community in Stanwood accompanied by two Copper Station homeowner association (HOA) board members, Tori Foley and Gabriel Meekins. Welborn drove her personal vehicle and picked Foley and Meekins up from their respective homes in Copper Station.

As the drive-through was nearing its conclusion, Welborn pulled her car over to the side of the road so that she and Foley could investigate and discuss a possible violation. Welborn backed up so that her car was parked in front of a truck that was also parked on the side of the road. Welborn later testified that, as she and Foley finished their conversation, she began pulling back onto the road when "a vehicle came on our left side at a high rate of speed . . . and pulled his car in front of my car, blocking me from the front from being able to move." Welborn testified that a man she did not recognize then "started in a very fast pace coming at my vehicle," and that he was "yelling something." Welborn recalled feeling "panicked" and "just screaming, 'I'm on the board, I'm on the board.'"

Meekins, who was sitting in the back seat, could see only the man's torso

2

as he approached the car. Meekins later testified that as the man "rounded the rear driver side corner of his vehicle at a very fast pace, all I saw was this black gun that was exposed . . . with his sweatshirt purposely tucked in behind this exposed weapon and [the man's] hand . . . near it in a ready position." Meekins recalled that when the man got to Welborn's car, "his hand c[a]me up and then he slap[ped] his hand down on top of the roof of the car and ben[t] down and start[ed] yelling." The man then looked in the car and, at that point, Meekins recognized him as Jason Toner, Meekins's neighbor in Copper Station. Toner is a Snohomish County Sheriff's deputy but was not on duty at the time. Foley later testified that, upon seeing Meekins in the back seat, Toner "turned around immediately and ran to his car, like a quick walk . . . [a]nd then drove out, peeled out and rounded the corner."

In January 2019, Welborn, Foley, and Meekins sued Snohomish County and Toner in his capacity as a Snohomish County employee (together, the County Defendants). The plaintiffs also named Toner individually and his wife, Melissa, as defendants.^[1] All plaintiffs alleged federal civil rights violations by the County Defendants, negligent supervision by the County, and negligent infliction of emotional distress (NIED) by all defendants. Additionally, Foley and Meekins alleged defamation and false light claims against the Toners based on social media posts the Toners made after the February 2018 incident. Welborn also alleged a "personal injury" claim against the County Defendants and Toner.

The County Defendants removed the case to federal district court, which

3

remanded the matter to the superior court after summarily dismissing the federal claims. See Welborn v. Snohomish County, No. 2:19-cv-00355-RAJ, 2020 WL 1904060, at *5-7 (W.D. Wash. Apr. 17, 2020).

After remand, the superior court dismissed additional claims on summary judgment.^[2] As a result, the only claims to proceed to trial were (1) Welborn's "personal injury" and NIED claims against the County Defendants^[3] and Toner and (2) Foley's and Meekins's defamation and false light claims against the Toners.

Before trial, the court engaged counsel in a colloquy about the trial's anticipated length. The court observed that although it had received written time estimates from the parties, "it doesn't appear that they were created collaboratively," and the court was "not sure [it was] understanding exactly what it [wa]s that [it] ha[d] been given." As a result, the court suggested that it "go through each of the witness lists . . . so that [it] can understand who is actually being called and how long their testimony will take." The court proceeded to list each witness, asking counsel for each party to estimate how much time would be required for examination. When finished, the parties each confirmed that the court's witness list was complete. The court summed up the parties' time estimates and arrived at a total of 25.02 hours.

On the first day of trial, after the parties made their opening statements, the court indicated that it would allocate 8.5 hours to each party (the plaintiffs, the

4

Toners, and the County Defendants) for witness examination, "which gets us to slightly over your estimate." No objection to this time allotment was interposed. The court later explained that it settled on 8.5 hours by "add[ing] up all the time you requested and divid[ing] it by three, and then round[ing] up a little bit."

The court also observed that "some of the opening statements made me concerned that maybe I haven't understood everything that was litigated pre-trial on the issue of damages" and asked for clarification as to whether Welborn was claiming lost wages.^[4] Welborn confirmed through counsel that she was, based on her asserted inability to work after her encounter with Toner. The court expressed its general understanding that expert testimony was required to establish Welborn's inability to work and asked the parties to submit briefing on that issue. The court later ruled that it would exclude evidence of Welborn's past and future lost wages, explaining that Welborn "has not proffered any evidence that would prove: a) the actions of Defendants caused Plaintiff Welborn's psychiatric or physical disabilities and/or b) the alleged wage loss was proximately caused by Plaintiff Welborn's alleged injuries."

Trial took place over eight days in October 2020. Welborn testified that three days after her encounter with Toner, she developed a rash. Physician assistant Rochelle Trussell, who later examined Welborn at a dermatology clinic, testified that she diagnosed Welborn with urticaria dermatographism.^[5] According to a medical record admitted at trial, Welborn had received a previous diagnosis

5

of urticaria in 2011.

Welborn's treating physician, Dr. Karen Myren, testified and opined that Welborn's encounter with Toner more likely than not worsened Welborn's urticarial (which is also a skin condition or rash). She testified that she also diagnosed Welborn with posttraumatic stress disorder (PTSD) in spring of 2018, and she opined that it was "more likely than not that that event caused or significantly contributed to the PTSD."

The defendants sought to rebut Dr. Myren's opinions with testimony from Dr. Renee Bibeault, a psychiatrist with a focus on women's mental health, and Dr. Kent Carson, a physician with a specialty in dermatology. Dr. Bibeault opined that Welborn did not have PTSD and that although she suffered from unspecified trauma and stresser related disorder (UTSD), her encounter with Toner did not cause it. Dr. Carson opined both that stress does not cause or trigger dermatographism, and that Welborn's symptoms "were a natural progression of a pre-existing condition that would have occurred even without the event on February 8th, 2018."

Meanwhile, after Foley and Meekins testified, the Toners moved to dismiss the defamation and false light claims against them. The trial court granted the motion in part and dismissed (1) the defamation and false light claims against Toner, (2) Foley's defamation claim against Melissa, and (3) Meekins's false light claim against Melissa.^[6] Consequently, at the conclusion of the evidence, the only claims submitted to the jury were (1) Welborn's

6

"personal injury" and NIED claims against the County Defendants and Toner, (2) Foley's false light claim against Melissa, and (3) Meekins's defamation claim against Melissa. The jury returned defense verdicts on all of these claims. With regard to Welborn's claims, the jury found that Toner was negligent but that his negligence was not a proximate cause of injury or damage to Welborn.

The plaintiffs subsequently moved for a new trial. They argued, among other things, that the trial court erred by imposing time limits on the plaintiffs' trial presentation "when no authority exists to support this order." The plaintiffs also argued that the trial court's enforcement of the time limits denied them the opportunity to fully cross-examine Drs. Bibeault and Carson and to call two witnesses: Foley's husband and Melissa. In addition, the plaintiffs contended that a new...