                                                                                                                FILED
                                                                                                        COURT
                                                                                                                OF APPEALS
                                                                                                             DIVISION II
                                                                                                       2014 DEC 16
                                                                                                                   All 8: 33
                                                                                                       ST.   p'.' AS
                                                                                                       BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                          DIVISION II

LONNITA HASKINS,                                                                       No. 44655 -3 - II


                           Appellant /Cross- Respondent,


           v.



MULTICARE HEALTH SYSTEM, a                                                       UNPUBLISHED OPINION
Washington corporation d/ b /a Tacoma General
Hospital,


                           Respondent /Cross -Appellant,


TACOMA RADIOLOGICAL ASSOCIATES,
P. S., a Washington corporation; and Unknown
 John Does" and " John Doe Clinics,"

                                              Defendants.


           JOHANSON, C. J. —            Lonnita Haskins appeals the trial court' s judgment entered in Multicare

Health System d /b /a Tacoma General Hospital'                     s(   Multicare) favor.    She argues that ( 1) she was


entitled    to       a   jury   instruction   on   res   ipsa loquitur, ( 2) the trial court erred when it permitted


Multicare to present evidence of collateral source payments, and ( 3) the trial court improperly

instructed the jury about the burden of proof during voir dire and erred when it permitted

Multicare'       s   closing     argument     that the jurors   could choose a   burden     of proof   for themselves.
No. 44655 -3 -II


        We hold that it was reversible error to fail to give Haskins' s proposed res ipsa loquitur

instruction and that it was not error to permit Multicare to present evidence of past collateral source


payments. Accordingly, we vacate the judgment in Multicare' s favor, remand for a new trial, and

do not reach Haskins' s voir dire and closing argument issues.

        On cross appeal, Multicare argues that the trial court erred when it excluded Multicare' s


designated ER 615 in -court representative and when it declined to give Multicare' s proposed jury

instruction regarding the tax consequences of personal injury awards.

        We hold that the trial court abused its discretion when it denied Multicare' s request to

designate an employee who is also a fact witness in the case as its in -court representative under

ER 615, but it was not an abuse of discretion to decline to give Multicare' s proposed jury

instruction on the tax consequences of personal injury awards.

                                                        FACTS


                                                I. HASKINS' S SURGERY


        In 2007, Haskins was diagnosed with cervical cancer. After radiation treatments, Haskins


had an Indiana pouch surgery in order to correct incontinence.

        In March 2009, Dr. Bahman Saffari performed the surgery. Indiana pouch surgery involves

removing      portions   of   the large   and   small   intestines   and   using them to    create   a new "   urinary


reservoir."     1 Report      of   Proceedings ( RP) ( Jan. 16, 2013)         at   24.   The patient' s kidneys are


essentially detached from the bladder and reconnected to the new Indiana pouch reservoir,

bypassing the bladder. Indiana pouch surgery also involves the insertion of two stents to help drain

urine into bags so that urine output is monitored during recovery and pressure is relieved on the




                                                            2
No. 44655 -3 -II



pouch while it heals. Dr. Saffari also inserted a Malecot tube that allows hospital staff to flush the

pouch.




           Dr. Saffari thought that Haskins' s surgery was successful and that there was an 80 to 90

percent chance that the new Indiana pouch would function as her bladder for the remainder of her

life. However,       during her    recovery, Haskins      experienced complications.          At 4: 00 PM on March


11, Haskins was recovering in the hospital and Nurse Shaleeni Fortner assessed Haskins and

verified that her stents were secure.


           At 9: 59 PM,   certified nurse assistant     Ashley   Barker   emptied     the   urine   bags.   Barker was


trained on how to handle lines and drains and knew that the stents attached to the urine bags should

not   be   pulled.   She denied that    she would ever    hang the   urine   bags   over   the bedside.     She claimed


she did not notice whether Haskins' s stents had been pulled out because the blankets of her bed

were covering the tubes. But Haskins' s urine output was good.

           At 11: 00 PM, Haskins noticed that her stents were not putting out any urine. After Nurse

Fortner and the charge nurse, Nurse Debbie Dick, made a complete assessment, they found that

there had not been any urine output but that nothing appeared to be out of place and that there were

not "   any   problems at   the   stent."   4 RP ( Jan. 17, 2013) at 280 -81.


            At 11: 45 PM, Nurse Rebecca Sumey noticed that Haskins' s urine output was still low based

on when Barker had last emptied the bags at 9: 59 PM. Nurse Sumey was the first person to notice

that Haskins' s stents had become dislodged and testified that they had been pulled out about 14

 inches. Nurse Surrey' s entry in the records that night stated that the stents had been pulled out 50

 to 60 centimeters. Haskins told Nurse Sumey that she thought the stents became dislodged when

 Barker hung the urine bags over the side of the bed.


                                                            3
No. 44655 -3 -II



        The next morning, Dr. Saffari discussed Haskins' s stents and urine output with her and she
                                           had                         bags          the             the bed.   However, at
told him that   she   thought Barker             hung    the   urine          over         side of




trial, Haskins did not remember anything that happened on March 11 and did not remember seeing

the bags   hanging     over   the   side   of    her bed.      Because the stents became dislodged, Haskins


experienced acute renal       failure.     Although she made a complete recovery, because of the stent

complications, Haskins required an additional procedure and additional recovery time to correct

the problem with her stents and to avoid permanent kidney damage.

                                                       II. THE TRIAL


         In a motion in limine, Haskins argued that evidence of collateral source payments should


not be admitted because RCW 7. 70. 080 is unconstitutional. The trial court admitted evidence of

past compensation but excluded evidence of future collateral source payments.

         Multicare designated Barker             as   its in -court   representative pursuant         to ER 615.    Haskins


moved    in limine to   exclude     Barker because        she was a " critical witness."         1 RP ( Jan. 14, 2013) at


3.   The court agreed and granted Haskins' s motion because Barker was a factual witness.

         Haskins offered expert testimony from two witnesses, Dr. Oliver Dorigo, the chief

gynecologic oncologist at        Stanford       University,     and    Karen Huisinga,        a nurse practitioner.    Both


testified that the most likely explanation for her stents becoming dislodged 10 to 14 inches was

hospital negligence. Nurse Huisinga also testified that hanging urine bags over the side of the bed

 falls below the standard of care for nurses and that, in her opinion, Haskins' s injury probably

 happened when Barker hung the bags over the bedside.




                                                                4
No. 44655 -3 -II



            Haskins also called Dr. Saffari, Nurses Fortner, Barker, Surrey, and Katherine Bechtold'

as   fact   witnesses     and   to   establish    the    appropriate      standards    of care   in nursing.      Haskins also


testified.


            Multicare    also    offered      testimony from          two   experts:     Cheyenne Haines, a nurse with


experience caring for recovering surgery patients, and Dr. Karny Jacoby, a urologist who testified

that she prefers not to perform Indiana pouch surgeries. Dr. Jacoby also provided an expert opinion

that "[    t] ubes fall out all the time" and that it often happens when patients roll around in bed or if

patients are confused and pull them out themselves. 2 RP ( Jan. 24, 2013) at 25.

            Multicare proposed a jury instruction stating that personal injury awards are not taxable.

The instruction         stated, "    Any award to plaintiff will not be subject to federal income tax, and

therefore     you should not add or subtract             for   such   taxes in   fixing the   amount of   any   award."   Clerk' s


Papers ( CP)      at   163. The trial court refused to give the instruction because " it would conflict with


the   no    insurance instruction." 5 RP ( Jan. 29, 2013) at 184.


            Haskins proposed the               standard       6   Washington Practice:           Washington Pattern Jury

Instructions: Civil 22. 01,           at   255 ( 6th   ed.   2012) ( WPI) instruction on res ipsa loquitur. She claimed


that she was entitled to the instruction based on expert testimony and recent case law. Multicare

argued that Haskins did not show that " she wasn' t the sole cause" of her injury and that res ipsa

loquitur      should   only be      applied "   sparingly."       5 RP ( Jan. 29, 2013) at 147. The trial court declined


to give Haskins' s proposed instruction.




 1 Nurse Bechtold was Multicare' s chief nursing officer.

                                                                      5
No. 44655 -3 - II



         The jury found in Multicare' s favor and the trial court entered judgment accordingly.

Haskins appeals from that judgment.

                                                          ANALYSIS


                        I. THE PROPOSED RES IPSA LOQUITUR JURY INSTRUCTION


         Haskins argues that the trial court erred when it failed to instruct the jury on res ipsa

loquitur. We agree and, accordingly, vacate the judgment and remand for a new trial.

                                A. STANDARD OF REVIEW AND RELEVANT LAW

         Whether a plaintiff is entitled to a res ipsa loquitur instruction is a question of law that we

review   de   novo.   Pacheco     v.   Ames, 149 Wn.2d 431, 436, 69 P. 3d 324 ( 2003).                         Res ipsa loquitur


establishes    only   a permissive      inference       of negligence.        Curtis v. Lein, 169 Wn.2d 884, 889, 239


P. 3d 1078 ( 2010) ( quoting          Zukowsky     v.   Brown, 79 Wn.2d 586, 600, 488 P. 2d 269 ( 1971)).                   Res


ipsa loquitur is    applied   only sparingly "'         in peculiar and exceptional cases, and only where the facts

and   the demands      of   justice   make   its   application essential. "'              Tinder   v.   Nordstrom, Inc., 84 Wn.


       787, 792, 929 P. 2d 1209 ( 1997) ( quoting Morner                           v.   Union Pac. R. R. Co., 31 Wn.2d 282,
App.

293, 196 P. 2d 744 ( 1948)).


         Res ipsa loquitur applies where the plaintiff can demonstrate


            1) the accident or occurrence that caused the plaintiff' s injury would not ordinarily
         happen in the    absence of negligence, ( 2) the instrumentality or agency that caused


         the plaintiff' s injury was in the exclusive control of the defendant, and ( 3) the
         plaintiff did not contribute to the accident or occurrence.


 Curtis, 169 Wn.2d      at   891 ( citing Pacheco, 149 Wn.2d                  at   436). A plaintiff is entitled to a res ipsa


 loquitur instruction if      each element         is   supported       by   substantial evidence.          WPI 22. 01, author' s


 cmts. at   256 ( citing Pacheco, 149 Wn. 2d               at   444).    Substantial evidence is evidence that is " of a




                                                                   6
No. 44655 -3 -II



sufficient quantum to persuade a fair -minded person of the truth of a declared premise."

Nationscapital     Mortg. Corp.         v.   Dep' t of Fin.   Insts.,   133 Wn. App. 723, 738, 137 P.3d 78 ( 2006).

                                      B. THE ELEMENTS OF RES IPSA LOQUITUR


         1.        FIRST ELEMENT - THE INJURY IS NOT THE KIND THAT ORDINARILY HAPPENS IN
                   THE ABSENCE OF NEGLIGENCE


         The primary dispute here is whether Haskins offered substantial evidence that her injury is

of   the kind that does        not   ordinarily   occur   in the   absence of negligence.      Haskins argues that Dr.


Dorigo' s expert testimony was sufficient to persuade a fair -minded person that stents do not

                                                              body      in the                            We agree and
ordinarily slip 14 inches            outside a patient' s                        absence of negligence.



conclude that Haskins provided substantial evidence that her injury is not of the type that ordinarily

happens in the absence of negligence.

         A plaintiff may prove that the accident producing the injury does not normally happen in
the absence of negligence in one of three ways:


                        1) When the act causing the injury is so palpably negligent that it may be
          inferred   as a. matter of law, i.e., leaving foreign objects, sponges, scissors, etc., in
          the   body,   or amputation of a         wrong   member; (       2) when the general experience and
          observation of mankind teaches that the result would not be expected without
          negligence; and ( 3) when proofby experts in an esoteric field creates an inference
          that negligence caused the injuries."


Curtis, 169 Wn.2d         at   891 ( emphasis     added) ( internal quotation marks omitted) (       quoting Zukowsky,

79 Wn.2d at 595).


          At trial, Haskins relied on the third prong: that her expert in an esoteric field, Dr. Dorigo,

 created an     inference that       negligence caused        the injuries.      Dr. Dorigo is a gynecologic oncologist




                                                                   7
No. 44655 -3 -II


                                                                                           2
and   has    performed       dozens      of   urinary diversion               surgeries.       Dr. Dorigo' s testimony provided

substantial       evidence     that   negligence         was   the    cause       of   her injuries.   He testified that he had


performed        20 Indiana     pouch surgeries and             20    additional       urinary diversion     surgeries.   Haskins' s


attorney     asked, "   Have you personally every [ sic] had a ureteral stent pulled out of the body 10 to

14 inches        following   one of    those       operations ?"     RP ( Jan. 22, 2013) at 8. Dr. Dorigo answered that


he had neither had that happen to one of his patients nor had he ever heard of such a problem

occurring in his time at University of California Los Angeles. RP ( Jan. 22, 2013) at 8. Dr. Dorigo

testified that, in his opinion, negligence was the most likely cause of Haskins' s injury in this case.

        We conclude that the trial testimony satisfies the first of the three elements needed to

support Haskins' s res ispa loquitur instruction. Dr. Dorigo' s testimony identifying the hospital' s

negligence as the most likely explanation for Haskins' s injury is enough to persuade a fair -minded

individual that her injury is not the type that ordinarily happens in the absence of negligence.

Brown v. Dahl, 41 Wn. App. 565, 581 n. 12, 705 P. 2d 781 ( 1985).

            2.       MULTICARE' S NONNEGLIGENT EXPLANATION MUST COMPLETELY EXPLAIN
                     HASKINS' S INJURY


            Multicare argues that several witnesses, including Dr. Dorigo, Dr. Saffari, and Dr. Jacoby,

testified that      ureteral    stents             out   frequently       and    inadvertently     without negligence.      Haskins
                                            slip


argues that her burden is only to provide substantial evidence that this type of injury ordinarily

does   not       happen in the        absence       of negligence, even             if Multicare     can   present   possible, " non -




negligent        explanations."       Br.   of   Appellant     at   23.       We agree with Haskins.




2 Neither party contests that urinary diversion surgery is the esoteric field in which his expert
opinion is relevant.


                                                                          8
No. 44655 -3 -II



         Haskins is entitled to a jury instruction on res ipsa loquitur unless there is other evidence

that completely        explains     her   injury.    Pacheco, 149 Wn.2d             at   440.    In Pacheco, an oral surgeon


who performed a wisdom tooth extraction procedure drilled in the wrong place in his patient' s

mouth. 149 Wn.2d at 434. Dr. Ames informed him that because the x -ray was misprinted with an

 LR," he had drilled in the wrong                  place.    Pacheco, 149 Wn.2d             at   434 -35.        The Pacheco court


directly addressed whether res ipsa loquitur is appropriate where evidence exists that the injury
could   have happened          without    the defendant'      s negligence.        See 149 Wn.2d            at   438 -39. The court


held that res ipsa loquitur is only defeated by an alternative explanation where " an inference [ of

negligence] is not possible, and thus there is nothing upon which the doctrine can operate."

Pacheco, 149 Wn.2d             at   440 ( citing    Covey    v.   W. Tank Lines, Inc., 36 Wn.2d 381, 391, 218 P. 2d


322 ( 1950)).       The plaintiff is entitled to the instruction as long as she presents substantial evidence

to satisfy    each element and other evidence                does   not "   completely     explain[ ]"      the injury. Pacheco,

149 Wn.2d at 440.


          Here, Dr.       Saffari testified that the stents can become dislodged in the absence of


negligence, either inadvertently or as the result of a patient' s natural movements in bed. Dr. Dorigo

also   testified that stents are slippery objects and can "[                  t]heoretically" become dislodged even in

the absence of negligence. RP ( Jan. 22, 201.3) at 40. Multicare' s expert, Dr. Jacoby, testified that

  t] ubes    fall   out all   the time"   even     in the   absence of      any   negligence.      2 RP ( Jan. 24, 2013) at 25.


Multicare certainly           presented alternate explanations           for Haskins'      s    injury:   inadvertent slippage or


the    patient' s natural movements.                But Pacheco does not require Haskins to rule out all other


 explanations.        See 149 Wn.2d         at   440.   She is entitled to the instruction where she has presented

 substantial evidence of each element of res ipsa loquitur, unless an alternate explanation



                                                                    9
No. 44655 -3 - I1



completely explains her injury. WPI 22. 01, author' s cmts. at 256 ( citing Pacheco, 149 Wn.2d at
444).


        Like in Pacheco, Haskins' s injury could be based either on Multicare' s negligence or other

nonnegligence explanations. Because Haskins presented substantial evidence of the first element

of res ipsa loquitur, the burden is shifted to Multicare to completely explain her injury in order to

defeat her      claim   to   an   instruction.        Pacheco, 149 Wn.2d    at   440.   However its evidence only

suggests another explanation and does not rule out its own negligence. Multicare is free to present

alternate explanations; each will be presented to the jury and it is up to the jury to decide the issue.

See Pacheco, 149 Wn.2d                at   440 -41.   Based on Dr. Dorigo' s testimony alone, as an expert in an

esoteric   field—urinary diversion             surgeries—   Haskins presented substantial evidence that her injury

is not the type that happens in the absence of negligence and Multicare has not provided sufficient

evidence to completely explain her injury. Curtis, 169 Wn.2d at 891.

           Therefore, we conclude that Haskins satisfied the first of the three elements and the trial

court erred when it found that she had not.

           3.       SECOND ELEMENT - THE INJURIES WERE CAUSED BY AN AGENCY OR
                    INSTRUMENTALITY WITHIN THE EXCLUSIVE CONTROL OF THE DEFENDANT

           The parties did not argue at trial nor do they argue on appeal that the second element of res

 ipsa loquitur    was at     issue.    Thus, we decline to review the second element and hold that Haskins

 provided substantial evidence that Multicare was in exclusive control of the instrumentality that

 caused her injury.




                                                                10
No. 44655 -3 -II



           4.          THIRD ELEMENT - THE INJURY -CAUSING ACCIDENT IS NOT DUE TO ANY
                       VOLUNTARY ACTION OR CONTRIBUTION ON THE PART OF THE PLAINTIFF

           Haskins argues that Dr. Dorigo and Nurse Huisinga provided substantial evidence that

Haskins' s own acts did not cause or contribute to her own injury and that Multicare' s suggestion

otherwise       is   speculation and,      ultimately,   a question of     fact for the      jury. We agree with Haskins

that she presented substantial evidence that she did not voluntarily cause or contribute to her injury.

           Where Haskins presents substantial evidence that she did not contribute to her injury, she

is entitled to a res ipsa loquitur jury instruction. WPI 22. 01, author' s cmts. at 256 ( citing Pacheco,

149 Wn.2d        at    444). Substantial evidence exists where the plaintiff has provided enough evidence


to   persuade a        fair -minded     person of   the truth of   her   assertion.     Nationscapital   Mortg. Corp.,   133


Wn.      App.   at    738.    According to the comment to WPI 22. 01, the third element is " rarely" needed

in   a   jury   instruction because '           the advent of comparative fault should logically eliminate the

element of           the   absence of    the   plaintiff' s contribution    to the    accident ...    unless the plaintiff' s


negligence appears             to be the sole     proximate cause of       the   event. "'    WPI 22. 01, author' s cmts. at


258 ( quoting Tinder, 84 Wn. App. at 795 n.23).

           Haskins' s theory of her injury is that Barker, when she drained her urine bags just before
 10: 00 PM,                  the bags          the bedside,   which caused        her   stents   to become dislodged.    Dr.
                 hung                   over




Dorigo' s testimony alone indicates that this and not any of Haskins' s movements or voluntary

actions was the most likely cause of Haskins' s injury. He testified that in his opinion and based
 on his experience and his review of Haskins' s medical records, her stents became dislodged when

 Barker hung Haskins' s urine bags over the side of the bed and that they would not have slipped 10

 to 14 inches outside her body if Haskins had voluntarily caused the slippage herself. Haskins' s



                                                                   11
No. 44655 -3 -II



medical records reflect that Haskins also told Dr. Saffari that the stents were accidentally dislodged

by hanging the draining bags over the bed.

         Nurse Huisinga also opined that because of the manner in which Haskins' s stents became

dislodged, Haskins had not caused the dislodgement herself either voluntarily or inadvertently. In

her opinion, if Haskins had experienced a " psychotic moment" or became confused, she would

have   pulled   the Malecot tube out        first   and not      the   stents.    RP ( Jan. 22, 2013)      at   80.   She thought


that   Haskins   was not   the "   mechanism        for this      the    stents   being   removed --    at all."      RP ( Jan. 22,


2013) at 80. Nurse Huisinga' s testimony, coupled with the testimony of Dr. Dorigo, is sufficient

to persuade a fair -minded person that Haskins did not voluntarily cause or contribute to her injury.

          Multicare' s argument that Haskins could have contributed to her injury misses the point

and ignores the standard of review. Haskins' s burden is only to provide substantial evidence that

she did not voluntarily contribute to the " accident or occurrence" that caused her injury; she need

not    completely   exclude   her   own contribution as a potential cause.                    Pacheco, 149 Wn.2d at 444.


Dr. Dorigo and Dr. Saffari agreed that stents on occasion can slip from the patient' s natural

movements.       But Haskins is not required to eliminate all doubt as to whether she could have

contributed to the injury in order to get an instruction. Pacheco, 149 Wn.2d at 444. She need only

present substantial evidence         that   she     did   not contribute        to the   injury- causing   accident.         The trial


court,   therefore,   should not weigh        Haskins'       s   theory    of    the   case against   Multicare'      s.     Once she


meets the substantial evidence threshold, Haskins is entitled to a res ipsa loquitur instruction unless

Multicare    can prove     that Haskins' s     was '       the   sole proximate cause of          the event. "'            WPI 22. 01,


author' s cmts. at 258 ( quoting Tinder, 84 Wn. App. at 795 n.23).




                                                                  12
No. 44655 -3 - II



          Here, apart from testimony that Haskins' s contribution could have theoretically caused the

stents to become dislodged in this way, Multicare presented no evidence that was what happened

here.                                              that Haskins' s     own    voluntary   actions   were   the "   sole
          Accordingly,   we   cannot   conclude




proximate cause" of her injuries. Haskins met her burden when she supported her theory (that the

stents became dislodged as a result of Barker' s negligence) with enough evidence to persuade a

fair -minded person of its truth.


          Accordingly, we hold that Haskins provided substantial evidence that she did not

voluntarily cause or contribute to her injury and, instead, that Barker' s negligence caused her
injury.

                                                 C. CONCLUSION


          Because Haskins provided substantial evidence to support all required res ipsa loquitur

elements, we     hold that it   was error    to fail to   give   Haskins'   s proposed res   ipsa instruction.      We


vacate the judgment in Multicare' s favor and remand for a new trial.

          II. THE COLLATERAL SOURCE DOCTRINE IN MEDICAL MALPRACTICE CASES AND THE
                                  CONSTITUTIONALITY OF RCW 7. 70. 080


           Haskins argues that RCW 7. 70. 080, permitting parties to present evidence of past collateral

 source payments in medical malpractice cases, is unconstitutional because it violates separation of

 powers principles and, therefore, the trial court erred when it permitted Multicare to offer evidence

                                         3
 of past collateral source payments.         Specifically, Haskins argues that the common law collateral


 3 Multicare argues, as a threshold issue, that Haskins failed to preserve the constitutionality
 question.  We conclude that Haskins did preserve the issue because Haskins' s motion in limine
 explicitly requested that the trial court either exclude evidence of collateral source payments
 because RCW 7. 70. 080 is unconstitutional, or, in the alternative, limit the collateral source
 evidence that Multicare could present to past compensation based on the language of the statute.


                                                           13
No. 44655 -3 -II



source doctrine is a procedural court rule and where a statute conflicts with a procedural court rule,


separation of powers principles are         implicated     and   the   statute   is   unconstitutional.   We disagree.


Because the common law collateral source doctrine is not a court rule and Haskins does not identify

a formal court rule that conflicts with RCW 7. 70. 080, there is no violation of separation of powers


principles. Accordingly, RCW 7. 70.080 is constitutional with respect to the admission of evidence

of past collateral source payments and the trial court did not err when it permitted Multicare to

present such evidence.



                                     RCW 7. 70. 080 IS CONSTITUTIONAL


         There are some fundamental functions which are inherent in the power of the judicial

branch; among them is the          power    to    promulgate rules       for   practice    in the   courts.   Putman v.


Wenatchee    Valley Med. Ctr., PS, 166 Wn.2d 974, 980,             216 P. 3d 374 ( 2009). But where it is alleged


that ( 1) a statute conflicts with a court rule, we ( 2) attempt to harmonize them and give effect to

both but,   where   this is impossible, ( 3)     the court rule prevails in procedural matters and the statute


prevails in substantive matters. Putman, 166 Wn.2d at 980.


         The procedure for adopting and amending court rules is explained in GR 9, entitled

  Supreme Court     Rulemaking." This process involves a request to amend, adopt, or repeal a rule;

the Supreme Court' s initial consideration of the proposed rule; consideration by the Washington

 State Bar Association and the lower courts; the opportunity for notice and public comment; and

final   adoption   by   the Supreme Court.                      h).
                                                 GR 9( d), ( f) -(


          Haskins' s argument here fails at the first step in a separation of powers analysis because

the   collateral source    doctrine is   not a   formal   court rule.   It was not adopted through the Supreme


 Court rulemaking process but is, rather, a common law doctrine. Adcox v. Children' s Orthopedic


                                                            14
No. 44655 -3 -II



Hosp. &    Med. Ctr., 123 Wn.2d 15, 40, 864 P. 2d 921 ( 1993) ( " RCW 7. 70. 080 replaces the common


law 's   collateral source rule ") (emphasis added).       Haskins, therefore, points to no conflict between


the statute and a court rule, but instead argues that the common law collateral source doctrine

should be treated as if it were a formal court rule for the purpose of a separation of powers analysis.

She points to no authority to support this argument, however, and we are aware of none. Without

a formal court rule, there is no conflict between that rule and a statute and, thus, no violation of

the separation of powers.



          First, to support her argument, Haskins asks us to apply the holding from Diaz v. State, 175

Wn.2d 457, 285 P. 3d 873 ( 2012), to this          case.   But Diaz is distinguishable. In Diaz, the plaintiff


was misdiagnosed with cancer.         175 Wn.2d at 460. Diaz settled with some of the defendants and

sought to exclude evidence of these settlements at trial, but the court admitted the evidence under

RCW 7. 70. 080. Diaz, 175 Wn.2d            at   461.   Our Supreme Court held that RCW 7. 70.080 violates

separation of powers principles and is thus unconstitutional to the extent that it conflicts with ER

408, prohibiting the admission of settlement evidence generally, because ER 408 and RCW
7. 70. 080 cannot be harmonized and ER 408 is a procedural, not substantive, court rule. Diaz, 175

Wn.2d at 471.


           Here, Haskins   asks us   to   resolve a    different kind   of conflict.   The conflict in this case is


 between the collateral source doctrine and RCW 7. 70. 080. Unlike ER 408, however, the collateral

 source doctrine is not a formal court rule, and Haskins does not argue that RCW 7. 70. 80 conflicts

 with anyy other formal court rule. We conclude, therefore, that Diaz does not apply.
           Second, the separation of powers analysis that Haskins asks us to apply to resolve the

 conflict between RCW 7. 70. 080 and the collateral source doctrine has been applied only to defeat


                                                           15
No. 44655 -3 -II



statutes that conflict with formal court rules. See, e. g., Diaz, 175 Wn.2d at 470 -71 ( RCW 7. 70. 080

is unconstitutional where it conflicts with ER 408, prohibiting the admission of evidence of

settlements);     Putman,      166 Wn.2d         at   982 -85 (   RCW 7. 70. 150 is unconstitutional because its

requirement that plaintiffs file a certificate of merit with medical malpractice claims conflicts with


pleading   requirements        in CR 8     and   CR 11);    Waples v. Yi, 169 Wn.2d 152, 158 -61, 234 P. 3d 187


 2010) ( RCW 7. 70. 100( 1)          conflicts with CR 3( a) and is unconstitutional because it requires an

additional   step to   commence a civil action             in   medical malpractice cases);        State v . Gresham, 173


Wn.2d 405, 428 -32, 269 P. 3d 207 ( 2012) ( RCW 10. 58. 090 conflicts with ER 404( b) because it


permits    the   admission of prior misconduct              for   character evidence purposes).          Haskins tries to


equate the common law collateral source doctrine with a formal court rule in order to set up a

separation of powers violation. Our precedent does not support this view and her claim fails.

          Finally,    in Adcox,      our   Supreme Court          recognized          that RCW 7. 70. 080 "   replaces"   the


common law collateral source doctrine. 123 Wn.2d at 40. In Adcox, the hospital sought to present

evidence of collateral source payments to the jury and the trial court found that it, instead, would

make any necessary collateral source offsets posttrial. 123 Wn.2d at 40. Our Supreme Court held
that, under the language of the statute, the hospital was entitled to present collateral source

evidence     to the   finder   of   fact. Adcox, 123 Wn.2d             at   40 -41.   Although the court was not asked to


pass on the constitutionality of the statute, it stated that RCW 7. 70. 080 replaces the collateral

 source doctrine, acknowledging that RCW 7.70. 080 was a proper exercise of legislative power.

Adcox, 123 Wn.2d at 40 -41.


          Because the common law collateral source doctrine is not a court rule and Haskins does

 not identify a formal court rule that conflicts with RCW 7. 70. 080, there is no violation of


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separation of powers principles. Accordingly, RCW 7. 70. 080 is constitutional with respect to the

admission of evidence of past collateral source payments and the trial court did not err when it

permitted Multicare to present such evidence.


                                               III. MULTICARE' S CROSS APPEAL


         Because the trial court failed to give the res ipsa loquitur instruction, we remand for a new

trial and, thus, we reach the merits of Multicare' s cross appeal. Multicare argues that the trial court


improperly excluded its designated ER 615 in -court representative from the courtroom, and that

the trial court abused its discretion when it failed to instruct the jury regarding the tax consequences

of personal          injury   awards.        We agree that the trial court improperly excluded Multicare' s

designated ER 615 representative, but conclude that the court did not abuse its discretion when it

failed to give the proposed instruction on the tax consequences of personal injury awards.

                  A. THE EXCLUSION OF MULTICARE' S DESIGNATED ER 615 REPRESENTATIVE


             Multicare first argues that the trial court improperly excluded its representative, Barker,

from the          courtroom   in   violation of    ER 615. We agree.


             We     review    interpretation       of   evidentiary   rules   de   novo.   Diaz, 175 Wn.2d at 462 ( citing

State   v.   Foxhoven, 161 Wn.2d 168, 174, 163 P. 3d 786 ( 2007)).                         Once we determine that the rule


was interpreted correctly, we review a trial court' s decision for an abuse of discretion. Diaz, 175

Wn.2d        at   462 ( citing State   v.   Neal, 144 Wn.2d 600, 609, 30 P. 3d 1255 ( 2001)). A trial court abuses


its discretion when it misinterprets a rule. Diaz, 175 Wn.2d at 462. We apply the same principles

to interpret        an evidence rule        that   we   apply   when   interpreting    a statute.   Gourley v. Gourley, 158

Wn.2d 460, 466, 145 P. 3d 1185 ( 2006). We consider the plain language of the rule and when the




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rule' s meaning is plain on its face, we will give effect to its plain meaning as an expression of the

intent   of   the   drafting body. Gourley, 158 Wn.2d at 466.

          ER 615 states,


                      At the request of a party the court may order witnesses excluded so that they
          cannot hear the testimony of other witnesses, and it may make the order of its own
          motion.       This   rule   does   not authorize    exclusion of ( 1)
                                                                 a party who is a natural
          person, or ( 2) an officer or employee of a party which is not a natural person
          designated as its representative by its attorney, or ( 3) a person whose presence is
          shown by a party to be reasonably necessary to the presentation of the party' s cause.

          We begin       our   interpretation   of   ER 615   by    considering its   plain   meaning.   Gourley, 158

Wn.2d at 466. In general, the rule gives the trial court broad discretion to exclude witnesses except

in three      enumerated circumstances.          In those three circumstances, the rule' s language explicitly

 does not authorize exclusion" of witnesses. ER 615. Based on the plain language of ER 615( 2),

the trial court is without authority to exclude a witness from the courtroom where ( 1) the party is

not a natural person, (2) the witness is the party' s employee, and ( 3) the party' s attorney designates

her to be its representative in court.


           A simple application of this rule shows that the trial court misinterpreted it. Multicare is

the defendant and is a Washington corporation, not a natural person. It is undisputed that Barker

was Multicare' s employee at the time of trial and that Multicare sought to designate her as its

representative.         Therefore, under ER 615, the trial court is without authority to exclude Barker

 from the courtroom.


           Accordingly, we hold that the trial court abused its discretion when it denied Multicare' s

 request to designate an employee who is also a fact witness in the case as its in -court representative

 under ER 615.




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                    B. MULTICARE' S PROPOSED JURY INSTRUCTION ON THE TAXABILITY OF
                                                     PERSONAL INJURY AWARDS


          Multicare also argues that the trial court erred when it refused to give a jury instruction

regarding the taxability of personal injury awards and because its proposed instruction is a correct
statement of law, the trial court erred when it refused to give it.4 We hold that the trial court did

not abuse its discretion when it refused to give the jury instruction on the taxability of personal

injury awards.

          We review the trial court' s decision not to give a proposed jury instruction for an abuse of

discretion.        Stiley   v.   Block, 130 Wn.2d 486, 498, 925 P. 2d 194 ( 1996).                    We review alleged errors


of   law in    a   jury   instruction de        novo.   Cox v. Spangler, 141 Wn.2d 431, 442, 5 P. 3d 1265, 22 P. 3d

791 ( 2000).        Jury instructions are appropriate where they permit the parties to argue their theories

of the case, are not misleading to the jury, and properly inform the jury of the applicable law. Cox,

141 Wn.2d at 442.


          In Hinzman             v.   Palmanteer, 81 Wn.2d 327, 333 -35, 501 P. 2d 1228 ( 1972), our Supreme


Court upheld a trial court' s refusal to give a jury instruction on the tax consequences of a personal

injury   award.       In Hinzman, the parents of a seven -year -old girl, who died in a car accident, sued

the   car' s   driver, its        owner,       and   the driver'   s   employer       for damages.     81 Wn.2d   at   328.   The


 defendants        requested an            instruction that the   jury   should      deduct " reasonable income taxes," among


 other   things from its          award.        Hinzman, 81 Wn.2d             at   333.   Our Supreme Court held that the trial


 court did not err when it refused to give the instruction and based its decision on three principles:



 4 Haskins argues that Multicare failed to preserve the jury instruction issue. But at trial, Multicare
 argued that its proposed jury instruction "deals with the non -taxability of a personal injury award."
 5 RP ( Jan. 29, 2013)                at   184. Multicare   stated, "    We' ll just take an exception to that and preserve
 the issue."        5 RP ( Jan. 29, 2013) at 184. We hold that the issue was preserved.

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 1) the plaintiff's tax liability is not pertinent to the issue of damages, ( 2) the amount oftax liability

that may come due is too speculative, and ( 3) it might be confusing for the jury to introduce an
income tax issue or question. Hinzman, 81 Wn.2d at 333 -34. The court held that

                    w]here extremely high income is involved, injustice to a defendant from
            ignoring future taxes might outweigh injustice to a plaintiff from reducing an award
            of   damages to    allow     for   a speculative   tax   element....    There was no proof of

            extremely high prospective income in the instant case, and even if we were to depart
            from the majority rule, this does not present an appropriate case to do so.

Hinzman, 81 Wn.2d at 334.


            In Boeke   v.   International Paint Co. ( California),        Inc., Division One of this court, relying

on Hinzman, refused to give an instruction that any award of damages would not be subject to

federal income tax. 27 Wn.               App. 611, 616 -17,     620 P. 2d 103 ( 1980), review denied, 95 Wn.2d


1004 ( 1981).       In Boeke, Division One held that because the            plaintiffs'   income   was not "`   extremely


high, "'    as   Hinzman    requires,    the income tax instruction       was not warranted.       27 Wn. App. at 617

 quoting Hinzman, 81 Wn.2d at 334).

            In Janson v. North Valley Hospital, the plaintiff, whose award was subject to federal

income taxes, requested a jury instruction out of concern that the jury would think her award was

nontaxable.        93 Wn.    App.   892, 906, 971 P. 2d 67 ( 1999).        Division Three of this court considered


a U.S. Supreme Court decision that permitted evidence of potential taxes on past and future

earnings      in federal    court, see   Norfolk & Western Railroad Co. v. Liepelt, 444 U.S. 490, 496 -98,


 100 S. Ct. 755, 62 L. Ed. 2d 689 ( 1980),             and disagreed with its reasoning. Janson, 93 Wn. App.

at   906.    Division Three concluded that Liepelt assumed that jurors would wrongfully inflate or

deflate awards based on inappropriate speculation on tax consequences. Janson, 93 Wn. App. at

 906. The court reasoned that the opposite assumption is just as likely and that instructing the jury


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on "'   every   conceivable matter as         to   which   it   should not misbehave or miscalculate '    would be


unnecessarily confusing.              Janson, 93 Wn.            App.   at   906 ( quoting Liepelt, 444 U.S. at 503


 Blackmun, J.,        dissenting)).     The Janson court held that the trial court erred in permitting an

instruction on the tax consequences of the plaintiff' s award because an instruction on taxes was

likely to overcomplicate the matter for the jury. 93 Wn. App. at 906.
          Multicare    requested a
                                      jury instruction that stated, " Any award to plaintiff will not be subject

to federal income tax, and therefore you should not add or subtract for such taxes in fixing the

amount of       any   award."   CP     at   163.   However, Haskins is not someone with an extremely high

income like the Hinzman            court envisioned.            Her exact income is unclear from the record, but


Haskins testified that       she   is permanently disabled             and receives   just $ 342 a month from Social


Security. She also testified that since she was diagnosed with cervical cancer, she has been on

Medicare        and   Medicaid.       This is not the type of high- income plaintiff the Hinzman court

envisioned whose award might be unjust to the defendant if taxes are not considered.


          Accordingly, we hold that the trial court did not abuse its discretion when it declined to

give Multicare' s proposed jury instruction on the taxability of personal injury awards.

                                                      CONCLUSION


          We hold that ( 1) it was reversible error to fail to give Haskins' s proposed res ipsa loquitur

instruction, ( 2) it was not error to permit Multicare to present evidence of past collateral source


payments, (      3) it was an abuse of discretion to deny Multicare' s request to designate an employee

who is also a fact witness in the case as its in -court representative under ER 615, and (4) it was not

 an abuse of discretion to decline to give Multicare' s proposed jury instruction on the taxability of




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personal injury awards. Accordingly, we vacate the judgment in Multicare' s favor and remand for
a new trial.



        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it.is so ordered.




 We concur:




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