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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MILTON LONG, individually, and as    )
Personal Representative of the       )           DIVISION ONE
ESTATE OF DONALD RODENBECK, )
                                     )           No. 74654-5-1
                   Respondent,       )
                                     )
             v.                      )
                                     )           UNPUBLISHED OPINION
PEACEHEALTH d/b/a PEACEHEALTH )
ST. JOSEPH MEDICAL CENTER,           )
a Washington Non-Profit Corporation, )
                                     )
                   Appellant.        )           FILED: May 15, 2017
                                     )

       DWYER, J. — An utterance referencing a witness's prior testimony that

does not reasonably convey an attitude or opinion is not a judicial comment on

the evidence. The trial judge herein sought clarification of testimony previously

given by an expert witness. In so doing, the trial judge first oriented the witness

to the subject of the inquiry, then posed three clarifying questions, and concluded

by remarking, "Okay." The trial resumed.

       The predicate for the trial judge's utterances was prior testimony given by

the witness. No reasonable juror could discern from the utterances the judge's

attitude or opinion toward the testimony. There was no error. Accordingly, we

reverse the order granting a new trial and remand for entry of judgment upon the

jury's verdict.
No. 74654-5-1/2




       Donald Rodenbeck underwent aortobifemoral bypass surgery at

PeaceHealth to treat his significant atherosclerotic disease. After two days of

observation in the hospital's intensive care unit, Rodenbeck's physician, Dr.

Connie Zastrow, approved his transfer to a regular hospital unit in light of his

stable vital signs and blood work. However, late in the evening of the transfer

and after a nursing staff shift change, a nurse entered Rodenbeck's room and

found him face up on the floor with a small to moderately sized pool of blood by

his head. She yelled for help. Several nurses arrived soon thereafter.

Rodenbeck had no pulse. An intravenous (IV) catheter that had been placed in

his neck had become disconnected and was open. Resuscitation attempts were

unsuccessful. Rodenbeck was pronounced dead.

       Milton Long, the personal representative of Rodenbeck's estate, sued

PeaceHealth for wrongful death and medical negligence. A 10-day trial resulted.

       At trial, Long presented the testimony of Dr. Kenneth Coleman, a

physician and attorney, who opined that Rodenbeck died from a combination of

significant undiscovered internal bleeding and a sufficient amount of external

blood loss to result in his death. Dr. Coleman testified that he relied on

Rodenbeck's medical records in forming his opinions.

       PeaceHealth presented the testimony of four expert witnesses, Doctors

Zastrow, Gary Goldfogel, Terence Quigley, and Matthew Lacy. PeaceHealth's

experts testified that they disagreed with Dr. Coleman's conclusion that

Rodenbeck had died from external blood loss because the amount of blood



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No. 74654-5-1/3


described by the eyewitnesses was insufficient to have caused Rodenbeck's

death. The expert witnesses testified to relying on several sources of information

provided by the eyewitnesses—personally speaking with the eyewitnesses,

reviewing their deposition testimony, and reviewing Rodenbeck's medical chart

notes. But the expert witnesses' testimony varied as to which sources of

information in particular each witness relied on in forming the opinions

expressed.

        After counsel for PeaceHealth finished the direct examination of Dr.

Quigley and while the jury was seated, Judge Deborra Garrett, the trial judge,

indicated that she wanted to question Dr. Quigley. After confirming with Dr.

Quigley that he had testified that the amount of external blood loss was "not

extensive," the trial judge inquired into what his sources of information were for

that proposition, including whether the sources were chart notes or deposition

testimony. Verbatim Report of Proceedings(VRP)at 1639. During their brief

exchange, Dr. Quigley indicated that he relied only on the eyewitnesses'

deposition testimony. The trial judge then replied, "Okay." VRP at 1640. The

trial resumed, with no objection interposed.'

        The jury returned a special verdict on behalf of PeaceHealth, answering

"Yes" to the question of whether PeaceHealth was negligent but answering "No"

to the question of whether PeaceHealth's negligence was a proximate cause of

Rodenbeck's death.



        1 Long did not object to the trial judge's line of questioning and, immediately after the
judge said "Okay," counsel for PeaceHealth indicated that, in light of the judge's questioning, he
had a few follow-up questions. VRP at 1640.


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No. 74654-5-1/4


        After the verdict, Long moved for a new trial, claiming, in his reply brief,

that the trial judge had improperly commented on the evidence during her

exchange with Dr. Quigley. At the hearing on the motion, Long urged the trial

judge to recuse herself from determining whether she had commented on the

evidence. The trial judge complied.

        Whatcom County District Court Judge Matthew Elich was assigned to rule

on the issue. After a hearing, and without the benefit of a complete trial

transcript, the substitute judge granted Long's motion for a new tria1.2

        PeaceHealth now appeals.

                                                  II

                                                  A

        We generally review an order granting a new trial for abuse of discretion.

Alum. Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856

(2000). The abuse of discretion standard recognizes that deference is owed to

the trial court because it is "better positioned than [an appellate court] to decide

the issue in question." Wash. State Physicians Ins. Exch. & Ass'n v. Fisons

Corp., 122 Wn.2d 299, 339, 858 P.2d 1054(1993)(quoting Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 403, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)).

This follows from the "oft repeated observation that the trial judge who has seen

and heard [the proceedings] is in a better position to evaluate and adjudge than

can we from a cold, printed record." State v. Wilson, 71 Wn.2d 895, 899, 431



       2 The substitute judge did not have the benefit of reviewing a transcript of the entire trial
because one had not yet been prepared. The only transcript made available to the substitute
judge was for the day on which the trial judge allegedly commented on the evidence.


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No. 74654-5-1/5


P.2d 221 (1967). Whether a trial judge's utterances constitute an improper

comment is a constitutional question that we review de novo. CONST. art. IV,§

16; State v. Woods, 143 Wn.2d 561, 590-91, 23 P.3d 1046 (2001). In review of

this case, we have these legal considerations in mind.



      The Washington Constitution provides,"Judges shall not charge juries

with respect to matters of fact, nor comment thereon, but shall declare the law."

CONST. art. IV, § 16. This constitutional provision is violated when a judge's

comments "imply to the jury an expression of the judge's opinion concerning

disputed evidence, or express the court's attitude towards the merits of the

cause." Hansen v. Wightman, 14 Wn. App. 78, 85, 538 P.2d 1238(1975)(citing

State v. Carothers, 84 Wn.2d 256, 267, 525 P.2d 731 (1974); State v. Jacobsen,

78 Wn.2d 491, 495, 477 P.2d 1 (1970); Risley v. Moberg, 69 Wn.2d 560, 565,

419 P.2d 151 (1966)), overruled on other grounds by Bowman v. Two, 104

Wn.2d 181, 186, 704 P.2d 140(1985).

      To rise to the level of an unconstitutional comment, the judge's opinion or

attitude must be "reasonably inferable from the nature or manner of the questions

asked and things said." Dennis v. McArthur, 23 Wn.2d 33, 38, 158 P.2d 644

(1945), overruled on other grounds by State v. Davis, 41 Wn.2d 535, 537, 250

P.2d 548 (1952).



      There is nothing irregular about a trial judge asking questions of a witness.

"The court, of course, may question witnesses." Egede-Nissen v. Crystal



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No. 74654-5-1/6


Mountain, Inc., 93 Wn.2d 127, 140, 606 P.2d 1214 (1980). It is beyond dispute

"[t]hat the court has wide discretionary powers in the trial of a cause and is not

prohibited from questioning a witness." Dennis, 23 Wn.2d at 37-38. Indeed, the

trial court may call its own witness. State v. Wixon, 30 Wn. App. 63, 77, 631

P.2d 1033(1981). Our rules of evidence recognize this judicial authority.

        CALLING AND INTERROGATION OF WITNESSES BY COURT

              (a) Calling by Court. The court may, on its own motion
       where necessary in the interests of justice or on motion of a party,
       call witnesses, and all parties are entitled to cross-examine
       witnesses thus called.
              (b) Interrogation by Court. The court may interrogate
       witnesses, whether called by itself or by a party; provided, however,
       that in trials before a jury, the court's questioning must be
       cautiously guarded so as not to constitute a comment on the
       evidence.
              (c) Objections. Objections to the calling of witnesses by the
       court or to interrogation by it may be made at the time or at the next
       available opportunity when the jury is not present.

ER 614.

       This judicial authority arises from pragmatic considerations. While

overseeing a trial, a judge may be called upon to rule on evidentiary objections,

objections based on previous rulings, motions to dismiss and the like.

Additionally, the trial judge must keep track of testimony in order to anticipate,

and later rule on, proposed jury instructions. For many reasons, trial judges must

keep an accurate contemporaneous account of trial testimony. In order to do so,

judges must be able to clarify testimony given by the witnesses. Our case law

recognizes that it is within the sound discretion of the trial court to pose clarifying

questions to a witness. State v. Brown, 31 Wn.2d 475,487, 197 P.2d 590, 202

P.2d 461 (1948).


                                           6
No. 74654-5-1/7




        The judicial utterances challenged herein are the following:

               [COUNSEL]: Thank you. Those are all my questions.
               [TRIAL JUDGE]: / have one question, Doctor, and that is, I
        don't know the technicaljargon, you indicated that your
        understanding, you indicated that amount of blood that was noted
        at the scene was not extensive in your view.[31
               DR. QUIGLEY: Yes.
               [TRIAL JUDGE]: What's your understanding, obviously you
        weren't there so you're relying on information from other sources on
        what the amount of blood was, and what I want to know is what's
        your information about what the amount of blood was?[41
               DR. QUIGLEY: Well, someone described, I forget, I really
        apologize, two inches around the head, which is frankly a trivial
        amount of blood and fluid. And someone else said it was less than
        a can of soda, which would be less than two of these put together
        and that's not enough blood to cause death, it just isn't.
               [TRIAL JUDGE]: Uh-huh, okay. So the information that
        you've got comes from your reading of the chart notes?[51
               DR. QUIGLEY: Depositions.
               [TRIAL JUDGE]: And from the depositions.
               DR. QUIGLEY: Actually from the depositions. I don't
        remember reading anything in the chart that said anything about
        blood loss. These were from eye-witnesses who were there and
        saw the patient and the amount of blood around his head.
               [TRIAL JUDGE]: Okay.
               [COUNSEL]: Your Honor, that triggers a couple follow-ups
        for me on this subject.



        3 Dr. Quigley had previously testified regarding the quantity of blood noted on the floor of
Rodenbeck's hospital room:
                 Q. Did you see some deposition testimony about the amount of blood
        seen when Mr. Rodenbeck was found on the floor of his room?
                 A. Yes.
                 Q. In your opinion were the amounts described sufficient to be an actual
        cause of death for Mr. Rodenbeck?
                 A. Absolutely not.
                 Q. Why not?
                 A. Well, it takes an awful lot of blood loss to result in someone's death.
VRP at 1635-36.
        4 Dr. Quigley previously testified to having reviewed the eyewitnesses' chart notes and
deposition testimony: "Q. Did you review medical records of Mr. Donald Rodenbeck? A. I did.
Q. Did you also receive numerous deposition transcripts? A. I did." VRP at 1606-07.
        5 As set forth above, Dr. Quigley had testified that he had reviewed deposition testimony
and Rodenbeck's    medical chart notes. VRP at 1607, 1635-36.


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No. 74654-5-1/8


             [TRIAL JUDGE]: Okay. Why don't you do those follow-up
       questions then we'll take our morning break and then we'll begin
       the cross-examination.

VRP at 1639-40(emphasis added).

       The trial judge's first utterance to Dr. Quigley oriented him to the testimony

about which the judge was to inquire. The testimony the trial judge referenced

was Dr. Quigley's prior testimony regarding the amount of blood noted on the

floor of Rodenbeck's hospital room. Because the utterance concerned prior

testimony with no reasonably inferable indicia of judicial opinion or attitude, the

first utterance was not a judicial comment.

       The second utterance revealed the trial judge's inquiry: clarification of Dr.

Quigley's sources of information regarding the testimony to which the trial judge

had just oriented him. Dr. Quigley had testified to having reviewed both the

eyewitnesses' chart notes and deposition testimony in forming his various expert

opinions. The trial judge acted well within her discretion by asking a clarifying

question regarding past testimony. This was not a comment on the evidence.

       The trial judge's third utterance was an attempt to clarify the witness's

answer to the court's prior question. From this, we can infer a lack of clarity on

the part of the trial judge—or in the judge's notes—as to the actual source of

information specified in Dr. Quigley's previous answer. However, we cannot infer

the trial judge's attitude or opinion of the witness's testimony. This utterance was

not a judicial comment.

       The trial judge's fourth utterance confirms the impression that the judge

had been mistaken about the source of the information underlying Dr. Quigley's



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No. 74654-5-1/9


testimony.6 The utterance does not inform the listener as to the trial judge's

attitude or opinion of the witness's testimony. It was not a judicial comment.

       The trial judge's fifth utterance, "Okay," was not a judicial comment.

Rather, it was a meaningless expression repeatedly used by the judge to indicate

to the parties that the trial judge had finished her line of inquiry or to acknowledge

some anticipated action by the parties. Indeed, on the day that Dr. Quigley

testified, the trial judge said "Okay" on no less than 21 separate occasions while

the jury was seated.7 Furthermore, in the colloquy set forth above, immediately

after the trial judge said "Okay," counsel for PeaceHealth rejoined that the

judge's questioning "triggers a couple follow-ups for me on this subject." And,

naturally, the trial judge replied, "Okay." There was no comment on the

evidence.



       The parties cite several cases on the issue presented. All were decided in

a manner consistent with our analysis herein.

       Two cases warrant discussion. In Dennis v. McArthur, 23 Wn.2d 33, our

Supreme Court rejected the contention that the trial judge had improperly

commented on the evidence while examining a witness. During a medical

malpractice trial, a physician who had treated the plaintiff testified that certain

types of medical treatment were not to be used when treating pregnant women.

The trial judge then posed a series of questions to the witness inquiring into


       6 The judge  was uncertain whether the source was chart notes, depositions, or both.
       7 VRP   at 1588, 1591 (three times), 1614,1616, 1640 (three times), 1641, 1646, 1658,
1667 (twice), 1668 (twice), 1724, 1762, 1775, 1782, 1806.
        8 VRP at 1640.



                                             -9-
No. 74654-5-1/10


whether the witness had diagnosed the plaintiffs case as a pregnancy case.

Dennis, 23 Wn.2d at 37-38. After the witness admitted to not having done so,

the trial court reiterated,"You had not yet diagnosed her?" Dennis, 23 Wn.2d at

37-38. The Supreme Court held that the trial judge's questioning "does not

disclose any grounds for the jury to infer that the court had or expressed any

opinion." Dennis, 23 Wn.2d at 38.

       The questioning by the trial judge in Dennis was more probing and pointed

than the utterances of the trial judge challenged herein. Nonetheless, the Dennis

court held that the judicial questioning therein did not constitute a comment on

the evidence. As the utterances challenged herein were more innocuous than

those challenged in Dennis, our opinion is plainly consistent with the holding of

that opinion.

       In the second case that bears discussion, the Supreme Court described

the circumstances as follows:

               At the close of respondent's case-in-chief, her counsel
       excused her main witness, an orthopedist who had treated her. He
       was about to rest her case, when the following occurred—to which
       error is assigned:

                      [Respondent's counsel]: I have no further
                questions and ask that this doctor be excused.
                THE COURT: I would just inquire doctor.

                            EXAMINATION BY COURT

                Q. In your best professional opinion, are you able to
                express an opinion rather, with reasonable medical
                certainty and circumstance of the treatments
                accorded this lady and her complaints to you, as to
                the approximate cause of the injuries? A. Yes.
                Q. What is your opinion? A. It would be my opinion
                that the injury she sustained was the proximate cause


                                       - 10-
No. 74654-5-1/11


             of the complaints which she had at the time I
             examined her. Q. What in your opinion with
             reasonable medical certainty is the cause of the injury
             in view of the facts as you know them? A. Say that
             again. Q. What in your opinion is the cause of the
             injuries that you observed in view of the facts as they
             have been related to you by the patient? A. It would
             be my opinion that the injuries resulted from the
             automobile accident[January 24, 1964]she described
             to me in January.

      In prior cross-examination, the following colloquy occurred:

             A. [By doctor]... . We would inquire with regard to
             the area involved, as to whether she had complaints
             of long standing duration or previous complaints.
             Q. Did you ask Mrs. Risley [respondent] if she had
             any previous complaints? A. Yes. Q. Do you recall
             what her answer was? A. I noted at the time of my
             examination that she had no previous difficulty with
             the involved area prior to the time that she was
             injured. . . . Q. If she had been under treatment prior
             to the date of the accident, would that have influenced
             your opinion [from your examination] one way or
             another? A. Yes.

              Appellants established that respondent had been treated by
      a chiropractor from October 1 to December 7, 1962, and January
      22 until March 28, 1963, for neck and back injuries as well as other
      complaints. She had a cervical affliction in the neck at the first
      seven cervical vertebrae in her spine. About February 19, 1963, an
      industrial insurance claim had been filed with the state. This
      information was not given to the orthopedist who testified for
      respondent.
              Another medical doctor testified for appellants. In his
      opinion, the respondent's present condition was the result of a
      degenerative disease of the cervical spine and this was not related
      to the accident trauma. A majority of patients with neck strain get
      over it within 3 to 6 months.
              It thus becomes apparent that the trial judge's questioning of
      respondent's doctor was an essential and vital part of her case. In
      these questions, the court assumed the existence of these injuries
      and her condition as a result of the accident in question.

Risley, 69 Wn.2d at 561-62 (footnote omitted).
No. 74654-5-1/12


        The Supreme Court noted that the case involved a "relatively short trial"

(only 3 witnesses were called), and observed that "the judge's questions appear

of great magnitude and importance." Risley, 69 Wn.2d at 565. As analyzed by

the Supreme Court, the judge's

        questions assumed the crux of respondent's case—a factual issue
        for the jury, viz, whether she had sustained injuries as a result of
        this accident. Appellant always contended that respondent did not
        receive any injuries from the accident. The judge, by assuming this
        fact, appeared personally to corroborate and seemingly to indorse
        the credibility of respondent and her doctor. The judge frankly
        admitted this had a material and substantial influence upon the jury.

Risley, 69 Wn.2d at 565.

        No such thing happened in the trial before us. Judge Garrett's questions

did no more than clarify testimony already given. None of her utterances

revealed her attitudes or opinions of the testimony or of the legitimacy of either

party's case. The substitute judge erred by granting a new trial in reliance on the

_Risley decision.



        The challenged judicial utterances, individually and collectively, regarded

prior testimony given by Dr. Quigley. No reasonable juror would believe that

these utterances revealed any judicial opinion of or attitude toward that

testimony. Thus, the trial judge did not comment on the evidence. Accordingly,

the substitute judge's grant of a new trial must be reversed.9




         9 Our resolution of this case confines itself to an analysis of the order granting a new trial
and the basis therefor. Long raised a variety of other issues or concerns in his briefing. We
purposefully do not address these matters. If properly preserved, these issues may be raised in a
direct appeal from the judgment.


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No. 74654-5-1/13


      Reversed and remanded for judgment to be entered on the jury's verdict.




We concur:




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