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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 ANNE CUTONE,                                             No. 73926-3-1


                          Appellant,                      DIVISION ONE


                   v.



 WAI K. LAW and JANE DOE LAW, and                         UNPUBLISHED
 their marital community,
                                                           FILED: September 6. 2016
                          Respondents.



            Cox, J. — Anne Cutone appeals the judgment on a jury verdict in this

personal injury case. Because the trial court did not abuse its discretion by

denying, in part, Cutone's motion in limine and deciding that limited evidence of

her prior injury would be admissible at trial, we affirm.

            Cutone and Wai Law were involved in a car accident. Based on Law's

admission that he was negligent, causation and damages were remaining issues

at trial.

            Cutone claimed that the accident gave her thoracic outlet syndrome. Law

argued that Cutone's complaints were related to a prior injury and were not

caused by this 2010 car accident.
No. 73926-3-1/2


          In her motion in limine, Cutone moved to exclude evidence of her prior

injuries. The trial court denied, in part, Cutone's motion and allowed opposing

counsel to question expert witnesses "about whether or not a prior injury such as

a broken clavicle" could cause Cutone's claimed injuries.1 The trial court

specifically prohibited Law from mentioning that a car accident caused the prior

injury.

          At trial, Cutone's three treating physicians concluded that the car accident

caused Cutone's claimed thoracic outlet syndrome. Conversely, Law's medical

expert, who performed a CR 35 examination of Cutone prior to trial, testified that

she did not sustain thoracic outlet syndrome, or any injuries, from this 2010 car

accident.

          The jury rendered its verdict in Cutone's favor in the total amount of

$5,480.00. This included past economic and noneconomic damages. The jury

did not award her future economic or noneconomic damages. The trial court

entered a judgment on the jury verdict.

          Cutone appeals.

                                   IN LIMINE RULING

          Cutone argues that the trial court abused its discretion by partially denying

her motion in limine to exclude evidence of her prior injury. We hold that the trial

court properly exercised its discretion in its ruling.




          1 Report of Proceedings (July 13, 2015) at 23.
No. 73926-3-1/3



       Trial courts have "wide discretion to determine the admissibility of

evidence."2 Courts may grant motions in limine ifthe motions describe "the

evidence which is sought to be excluded with sufficient specificity to enable the

trial court to determine that it is clearly inadmissible under the issues as drawn or

which may develop during the trial."3

       We review for abuse of discretion a trial court's decision to admit

evidence.4 "An abuse of discretion exists [wjhen a trial court's exercise of its

discretion is manifestly unreasonable or based on untenable grounds or

reasons.'"5

       In Harris v. Drake, the supreme court reiterated the rule that "[wjhen an

accident lights up and makes active a preexisting condition that was dormant

and asymptomatic immediately prior to [an] accident, the preexisting condition

is not a proximate cause of the resulting damages."6

       In Hoskins v. Reich, following Harris, Division Two of this court stated that

evidence of a party's pre-accident treatment was not relevant to proximate cause

and damages because there was no "evidence of symptoms or a preexisting




       2 State v. Demerv, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001) (plurality
opinion).

       3 Douglas v. Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160(1991).

       4 State v. Quaale. 182 Wn.2d 191, 196, 340 P.3d 213 (2014).

       5 Id at 197 (alteration in original) (internal quotation marks omitted)
(quoting State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001)).
       6 152 Wn.2d 480, 494, 99 P.3d 872 (2004) (emphasis added).
                                              3
No. 73926-3-1/4


condition subject to a natural progression."7 Thus, Division Two of this court

concluded that the trial court in that case abused its discretion in admitting

evidence of a party's pre-accident chiropractic treatment because there was no

evidence of a symptomatic condition prior to the accident.8

       Here, before trial, Cutone moved to exclude evidence of her prior injuries.

The legal question was whether there was medical evidence to show that this

accident made active a preexisting condition that was neither dormant nor

asymptomatic. If the answer to that question was yes, the evidence was relevant

and admissible at trial.

       At the motion hearing, Cutone argued that she was not symptomatic prior

to this car accident with Law. Law's medical expert, Dr. Richard M. Kremer, who

performed a CR 35 examination of Cutone, testified otherwise.

       His declaration and written report of his CR 35 examination state his

medical opinions under the proper standard: that they are on a more probable

than not basis to a reasonable degree of medical certainty.9

       He testified that Cutone:

       suffered a fractured clavicle in the 1981-82 automobile accident.
       The fractured clavicle resulted in a structural change and fracture
       calcification, evident on my physical examination of the plaintiff.
       This condition, as well as an increase in plaintiff's weight, is more
       probably than not the cause of plaintiff's alleged thoracic outlet




       7 142 Wn. App. 557, 568, 174 P.3d 1250 (2008).

       8 Id.

         Clerk's Papers at 74.
No. 73926-3-1/5



      syndrome symptoms, due to intermittent partial obstruction of the
       right subclavian artery and/or the right subclavian vein.[10]

       He further testified that:


              Given plaintiff's long-standing and chronic complaints of
       neck and back pain, it is more likely than not, that plaintiff continued
       to suffer from symptomatic conditions prior to the subject accident
       on a more probable than not basis.[11)

      The CR 35 examination report states, among other things, in response to

a series of questions:

             Did plaintiff suffer from any preexisting conditions that were
       asymptomatic but "lit up" in the collision?

             The only preexisting condition that the plaintiff has is the
       previous cervical trauma caused by a motor vehicle accident in
       1981-1982 time frame, with broken clavicle, which is identifiable on
       physical examination. This only came to light during my
       examination when I noted the callous formation of the clavicle and
       asked the plaintiff if she had ever broken her collar bone. This, as
       well as increase in the plaintiff's weight, could cause an anatomic
       situation in the area of the thoracic outlet, which could cause
       intermittent partial obstruction to the right subclavian artery in an
       individual who admittedly sleeps solely on her back. This may also
       be supported by the vascular testing which was positive in the
       resting position and with the Adson's maneuver, an unusual set of
       findings. I do not believe that any condition was "lit up" by the
       collision.[12]

       The trial court denied, in part, Cutone's motion. The court ruled that

opposing counsel would be allowed at trial to question expert witnesses "about

whether or not a prior injury such as a broken clavicle" could have caused




       10 id at 73.

       11 Id at 74.

       12 Id. at 89.
No. 73926-3-1/6


Cutone's claimed injuries.13 The court excluded any mention of the fact that an

automobile accident caused the prior injury. There was no abuse of discretion in

this ruling.

          This medical expert opinion is sufficient to show that Cutone's preexisting

condition was neither dormant nor asymptomatic. Accordingly, it was relevant to

the question of proximate cause, as presented to the court at the time of the

motion in limine. What developed later, at trial, was not relevant to the question

of what was before the court at the time of the motion.


          Cutone argues that this medical expert opinion was speculative. Not so.

In any event, it was within the trial court's discretion to allow the trier of fact, in

this case the jury, to determine the witnesses' credibility.

          Because we have resolved this matter on the basis discussed, we need

not address the other arguments raised by the parties.

          We affirm the judgment on the jury verdict.

                                                             dsx.X
WE CONCUR:

      \
                                                    ^o^va



          13 Report of Proceedings (July 13, 2015) at 23.
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