Yeager v. O'Keefe

Decision Date07 March 2017
Docket Number48189-8-II
CourtWashington Court of Appeals
PartiesLINDA YEAGER, an unmarried woman, Appellant, v. JOHN O'KEEFE and "JANE DOE" O'KEEFE, and the marital community composed thereof, Respondents,

UNPUBLISHED OPINION

Melnick, J.

Linda Yeager appeals from a civil judgment and argues that the trial court erred by denying the admission of a doctor's deposition testimony. We affirm.

FACTS

In January 2011, Linda Yeager and John O'Keefe were involved in a two-vehicle car collision. While stopped in a left turn lane, O'Keefe rear-ended Yeager. Yeager did not seek emergency treatment and drove home. Approximately two weeks after the collision, Yeager sought medical care. Her chief complaints involved pain in her finger, foot, and elbow which radiated into her shoulder, neck, and back.

Three years later, Yeager sued O'Keefe. O'Keefe admitted liability for causing the collision, but denied the nature and extent of Yeager's injury and damages.

In June 2015, Yeager filed a supplemental disclosure of primary witnesses which identified Dr. Eyal Kedar as a medical professional and Yeager's current rheumatologist. The disclosure stated that Kedar "may testify at trial and offer opinions as to [Yeager's] collision related injuries." Clerk's Papers (CP) at 20. Kedar, a physician from Virginia Mason Medical Center, became Yeager's treating physician in November 2013. Yeager's previous doctor, also from Virginia Mason diagnosed her with diffuse pain syndrome consistent with fibromyalgia.

In August, O'Keefe took a discovery deposition of Kedar. Yeager also examined Kedar. During the deposition, Kedar indicated that when he first saw Yeager in November 2013, the visit related to the car accident. Kedar stated that his opinions were limited to Yeager's fibromyalgia diagnosis. He opined that it was "possible that her fibromyalgia may have been worsened by the car accident, or even potentially brought on." Supplemental (Supp.) CP at 170. Kedar could not say with a reasonable degree of medical certainty whether the car accident caused or aggravated Yeager's fibromyalgia.

Kedar further opined that if Yeager had fibromyalgia at the time of the accident, there was a "good chance" the accident worsened it. Supp. CP at 178. Kedar had no knowledge of Yeager's condition before or at the time of the car accident, other than what Yeager's attorney told him regarding undiagnosed numbness and tingling. He stated that he would need more information about Yeager's fibromyalgia before he could testify at trial. Four days after the deposition, Yeager filed a notice of intent to offer Kedar's testimony by deposition pursuant to CR 32(a)(5), followed by a designation of Kedar's deposition excerpts.

Trial began and on its second day, the court heard argument from the parties regarding the admissibility of Kedar's deposition. Yeager argued that it should be admitted pursuant to both CR 32(a)(5) and CR 32(a)(3)(B). O'Keefe argued that neither applied.

The trial court noted that Yeager had changed her position Yeager now wanted to introduce Kedar's deposition under CR 32(a)(3) which she did not previously cite in her notice of intent. The court ruled that it would not allow Kedar's deposition testimony. It reasoned that Yeager had the obligation to secure the attendance of her expert witness and that CR 32(a)(5) did not apply.

On the same day, Dr. Samuel Coor testified as Yeager's expert witness. He reviewed Yeager's medical records which included records from Virginia Mason. Based on this review he opined about the injuries related to the car accident. Coor did not testify as to Yeager's fibromyalgia, nor did Yeager question Coor about the fibromyalgia.

On the third day of trial, Yeager filed a written motion to allow Kedar's deposition and requested that the court allow her to read excerpts from the deposition at trial "pursuant to CR 32(a)(3)(B)." CP at 105. In support of her motion she submitted Kedar's declaration which stated that he was Yeager's treating physician, he resided more than 20 miles from the jurisdiction of the proceedings, and he was not available to appear in person to testify at trial due to his patient schedule. Yeager argued that Kedar was "not a retained expert" and excluding his testimony would be highly prejudicial to her case. CP at 107.

Yeager also argued that pursuant to Kimball v. Otis Elevator Co., 89 Wn.App. 169, 947 P.2d 1275 (1997), professionals who acquire facts and opinions not in anticipation of litigation but from other involvement, were not considered experts but fact witnesses. Because Kedar was not an expert whose opinion was formulated in anticipation of litigation, Yeager argued for the admission of Kedar's deposition under CR 32(a)(3)(B).

O'Keefe distinguished Kimball factually, arguing that Kedar's proffered testimony involved an opinion on medical causation of injuries from the car accident, not simply factual testimony. The trial court agreed with O'Keefe and found Kedar to be an expert witness. It clarified that Kedar could testify in-person. Kedar resided in the State and was subject to a subpoena. Yeager should have made timely arrangements to secure Kedar if she wanted him to testify.

On the last day of trial, Yeager again moved to admit Kedar's deposition transcript. She argued that because Kedar was a treating physician and his testimony was consistent with the information in her medical records, Kedar was a witness who fell under CR 32(a)(3). Specifically, Yeager argued:

[Kedar's] testimony ... is not anything going outside the scope of what was documented in the medical records, which specifically is, it does appear that she developed diffuse pain syndrome following the motor vehicle accident is consistent with fibromyalgia ... the same comment that was read by [O'Keefe's expert] yesterday, in that they found that she was having fibromyalgia related to the motor vehicle collision. And that is documented in these medical records.

4 Report of Proceedings (RP) at 628-69. The court denied the motion.

At the close of trial, the jury awarded Yeager $2, 306.40 in damages for past medical expenses and non-economic damages. Yeager appeals.

ANALYSIS

Yeager argues that the trial court erred in applying CR 32(a)(3)(B) which allows the use of a witness' deposition if the witness resides outside of the county more than 20 miles from the place of trial, and if the witness' absence from trial is not procured by the party offering the deposition. She argues that from a plain reading, the rule applies to any such witness with the exception of the opposing party's out-of-state expert witness whose opinion is acquired in anticipation of litigation.[1] She argues that CR 32(a)(5) which allows the use of an expert witness' deposition, is not the only means of admitting an expert's deposition. We disagree and conclude that CR 32(a)(3)(B) applies to lay witnesses and fact witnesses, not CR 26(b)(5) experts, and the trial court did not err by applying CR 32(a)(5) to Kedar's deposition testimony.

I. Standards of Review

We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion. Hendrickson v. King County, 101 Wn.App. 258, 265, 2 P.3d 1006 (2000). We, therefore, review a trial court's decision to deny admission of a deposition under CR 32 for an abuse of discretion. Sutton v. Shufelberger, 31 Wn.App. 579, 585, 643 P.2d 920 (1982); In re Estate of Foster, 55 Wn.App. 545, 548, 779 P.2d 272 (1989). We overturn the trial court's ruling on the admissibility of evidence if its decision was manifestly unreasonable, exercised on untenable grounds, or based on untenable reasons. Mut. o/Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn.App. 702, 728, 315 P.3d 1143 (2013).

Interpretation of court rules are questions of law we review de novo. Cascade Floral Prod, Inc. v. Dep't of Labor & Indust, 142 Wn.App. 613, 618, 177 P.3d 124 (2008). Court rules are interpreted in the same manner as statutes. Jafar v. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042 (2013). If the rule's meaning is plain on its face, we give effect to that meaning as an expression of the drafter's intent. Jafar, 177 Wn.2d at 526. If the rule is '"susceptible to two or more reasonable interpretations, ' it is ambiguous". Five Corners Family Farmers v. State, 173 Wn.2d 296, 305, 268 P.3d 892 (2011) (quoting Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005)). If a rule is ambiguous, we may look to the drafter's intent by '"reading the rule as a whole, harmonizing its provisions, and using related rules to help identify the legislative intent embodied in the rule.'" Jafar, 177 Wn.2d at 526-27 (quoting State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007)).

II. Application of CR 32(a)(3)(B)

The use of a witness' deposition at trial is governed by CR 32(a), which provides:

[A]ny part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness resides out of the county and more than 20 miles from the place of trial, unless it appears that the absence of the witness was procured by the party offering the deposition or unless the witness is an out-of-state expert subject to subsection (a)(5)(A) of this rule[.]
(5) The deposition of an expert witness may be used as follows:
(A) The discovery deposition of an opposing party's rule 26(b)(5) expert witness, who resides
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