Wife v. Le Duc

• Decision Date: 08 September 2010
• Docket Number: No. 38699-2-II.,38699-2-II.
• Citation: 157 Wash.App. 455,238 P.3d 1187
• Court: Washington Court of Appeals
• Parties: Colleen EDWARDS and Dennis Edwards, husband and wife, Respondents, v. Barbara LE DUC and John Doe Le Duc, and the marital community composed thereof, Appellants.

157 Wash.App. 455

238 P.3d 1187

Colleen EDWARDS and Dennis Edwards, husband and wife, Respondents,

v.Barbara LE DUC and John Doe Le Duc, and the marital community composed thereof, Appellants.

No. 38699-2-II.

Court of Appeals of Washington,Division 2.

July 7, 2010.

Publication Ordered Sept. 8, 2010.

Marilee C. Erickson, Michael Neil Budelsky, Reed McClure, Seattle, WA, for Appellants.

Stephanie Bloomfield, Gordon Thomas Honeywell, John Stratford Mills, Law Offices of David Smith PLLC, Tacoma, WA, for Respondents.

VAN DEREN, C.J.

¶ 1 Barbara Le Duc appeals a jury verdict awarding $100,000 in damages to Colleen Edwards, arguing, among other things, that the trial court abused its discretion in refusing to grant a new trial under CR 59(a)(1). ¹ Because of significant irregularities at trial, we reverse and remand for a new trial.

FACTS

I. Background

¶ 2 This lawsuit arose from a motor vehicle accident that occurred on November 5, 1995, involving Colleen Edwards and Barbara Le Duc. Le Duc's vehicle hit the back of Edwards's, damaging both vehicles. As a result of this accident, Edwards claimed that she suffered an increase in seizures, pain, and fatigue.

¶ 3 Edwards's medical history is complex and difficult to piece together from the trial record. At birth, she suffered lung and retinal tissue damage in addition to possible brain damage. She grew up legally blind. ² In 1979, she was involved in a car accident in which she suffered a closed head injury, a cervical nerve root injury, and an injury to her right leg. In the 1980s, she suffered from chronic neck pain.

¶ 4 In 1986, Edwards fell on ice, suffering another head injury that resulted in traumatic brain injury, seizure disorder, and syncopaty. ³ She was treated at the Harborview Medical Center epilepsy clinic for symptoms related to her seizures. For much of the 1980s, she used braces, forearm crutches, and a wheelchair to move around.

¶ 5 In 1990, Edwards was involved in a second car accident. She did not have any permanent injuries from that accident. Over the course of her life, Edwards has worked as a dog trainer, martial arts instructor, bodyguard specialist, rehabilitation therapist, and private investigator.

II. Trial

¶ 6 Edwards filed a personal injury suit against Le Duc on June 24, 1998. ⁴ Le Duc admitted liability for the accident and acknowledged that Edwards sustained some temporary back pain as a result of the accident. But Le Duc challenged Edwards's claims that this accident caused additional neurological problems and seizures. On March 31, 2000, the trial court allowed Edwards's attorney to withdraw and continued the scheduled trial proceedings. Ultimately, Edwards represented herself at trial.

¶ 7 In addition to her own testimony, Edwards called six lay witnesses, including her husband and co-plaintiff, Dennis; friends; and colleagues in the dog training community. Several health care providers also testified on her behalf, but Edwards did not call any of her treating or consulting neurologists to testify. Throughout the trial, the court assisted Edwards by rephrasing questions, suggesting questions, and helping her admit exhibits.

¶ 8 On March 22, 2001, the jury returned a $100,000 verdict in favor of Edwards. On October 24, 2008, after seven years and multiple unsuccessful attempts, Edwards successfully entered the judgment against Le Duc. Le Duc unsuccessfully moved either for remittitur or for a new trial under CR 59(a).

¶ 9 Le Duc appeals the trial court's denial of her CR 59(a) motion based on procedural irregularities at trial.

ANALYSIS

I. Standard of Review

¶ 10 We normally review the grant or denial of a new trial for an abuse of discretion, but we review it de novo if the motion for a new trial is based on an allegation of legal error. Marvik v. Winkelman, 126 Wash.App. 655, 661, 109 P.3d 47 (2005); see State v. Jackman, 113 Wash.2d 772, 777, 783 P.2d 580 (1989); Schneider v. City of Seattle, 24 Wash.App. 251, 255, 600 P.2d 666 (1979). A trial court abuses its discretion when its decision is manifestly unreasonable, is exercised for untenable reasons, or is based on untenable grounds. Lian v. Stalick, 106 Wash.App. 811, 824, 25 P.3d 467 (2001). We afford greater deference to a decision to grant a new trial than a decision to deny one. Richards v. Overlake Hosp. Med. Ctr., 59 Wash.App. 266, 271, 796 P.2d 737 (1990).

II. Grounds for New Trial

¶ 11 Le Duc argues that the trial court abused its discretion by refusing to grant a new trial under CR 59(a). ⁵ The judiciary has long recognized that “the ordinary juror is always anxious to obtain the opinion of the court on matters that are submitted to [the juror's] discretion, and that such opinion, if known to the juror, has a great influence upon the final determination.” State v. Crotts, 22 Wash. 245, 251, 60 P. 403 (1900); see, e.g., Bolte v. Third Ave. R.R. Co., 38 A.D. 234, 237, 56 N.Y.S. 1038 (N.Y.App.Ct.1899); State v. Jackson, 83 Wash. 514, 523-24, 145 P. 470 (1915); Jankelson v. Cisel, 3 Wash.App. 139, 144, 473 P.2d 202 (1970).

¶ 12 A trial court should consider ordering a new trial in instances of “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial.” CR 59(a)(1). Irregularity includes instances of a trial court's lack of impartiality that has a prejudicial effect on the fact finder. See CR 59(a)(1); Morris v. Nowotny, 68 Wash.2d 670, 673-74, 415 P.2d 4 (1966); Hanna v. Bodler, 173 Wash. 460, 462, 23 P.2d 396 (1933); Brister v. Council of Tacoma, 27 Wash.App. 474, 486-87, 619 P.2d 982 (1980).

¶ 13 A trial court must hold pro se parties to the same standards to which it holds attorneys. ⁶ Westberg v. All-Purpose Structures, Inc., 86 Wash.App. 405, 411, 936 P.2d 1175 (1997). Here, the trial court appeared to overstep the bounds of impartiality repeatedly during the trial. When Edwards questioned her medical expert witnesses, the trial court assisted her in laying a proper foundation for expert testimony and repeatedly interjected the proper standard of proof for admissible medical opinions or conclusions. But Edwards was unable or unwilling to articulate the trial court's suggested questions, so she repeatedly directed her witnesses to answer court-posed questions, which the trial court permitted. For example, the following exchanges occurred during the testimony of Dr. Sherwood Young, her rehabilitation physician:

[EDWARDS:] Okay. Now the neuropsychological results, that was-is that considered a medical opinion or a medical fact?

[LE DUC'S COUNSEL]: Your Honor, I'm not sure I understand where we're going here or what the relevance of medical opinion versus medical fact is in a court of law.

THE COURT: Sustained. There's isn't any. It has to be medically more probable than not a medical certainty, his opinions.

[EDWARDS:] ... Is there more medical certainty after neuropsychological testing that I had sustained a brain injury?

[LE DUC'S COUNSEL]: Your Honor, I'm going to object until this witness offers his opinion on a more probable than not basis to a reasonable degree of medical certainty that any of these symptoms were caused by the 1995 motor vehicle accident. This is all a futile exercise.

THE COURT: I'm going to sustain that objection.

....

THE COURT: Then ask him the question. Does he have an opinion, based upon reasonable medical probability, to a reasonable medical certainty, whether or not you suffered any injuries as a result of the 1995 automobile accident.

[EDWARDS:] ... Could you answer the Judge's question so I don't have to repeat it?

THE COURT: On a more probable than not basis.

[DR. YOUNG]: No. On a more probable than not basis I could not offer an opinion in that regard because again the neuropsychological testing is beyond my area of training.

[LE DUC'S COUNSEL]: I renew my motion to strike and ask the witness be excused and jury be instructed not to consider his testimony in this case.

Report of Proceedings (RP) at 246-48 (emphasis added). In attempting to elicit Dr. Young's opinion about injuries she sustained in the accident with Le Duc, the following occurred:

[EDWARDS:] On a more probable basis than not would I-based on my history and symptoms, on a more probable basis than not, did you suspect that I had received some kind of injury from the automobile accident in 1995?

[LE DUC'S COUNSEL]: I guess again to the extent that's asking for a more probable than not basis of a suspicion it's improper. The opinion should be is it your opinion, Doctor, more probable than not.

THE COURT: Sustained. Leave out the word suspicion. On a more probable than not basis did you suffer injury, brain injury from the 1995 accident. Is that what you want to ask?

[EDWARDS:] Yes.

THE COURT: Without the word suspicion, on a more probable than not basis.

[EDWARDS:] ... Okay. On a more probable than not basis did I sustain brain injury from the 1995 automobile accident?

....

[EDWARDS:] ... Dr. Young, when you see seizures increase and increased head injury sequela, would that be the correct term?

[Dr. YOUNG]: Sequela.^{[ 7 ]}

[EDWARDS]: Sequela, excuse me. Thank you. What do you suspect?

[LE DUC'S COUNSEL]: Again, the suspicions aren't relevant and are not admissible.

THE COURT: Sustained.

[EDWARDS:] What?

THE COURT: Just ask very simply in the preparatory aspect of it you've stated what you want to know on a more probable than not basis does he have a [n] opinion as to whether or not you suffered, based on that history, you suffered injury as a result of the accident in 1995.

[EDWARDS:] ... Could you answer the Judge's question?

RP at 258-61 (emphasis added).

¶ 14 By allowing Edwards to refer to the trial court's phrasing of the questions, the trial court virtually took over questioning her key witnesses at pivotal points. See Bolte, 38 A.D. at 236-37, 56 N.Y.S. 1038. Ultimately, the trial court stopped requiring that...