                                                                                                                     FILED
                                                                                                             COURT OF    A2
                                                                                                                              EALS
                                                                                                                   DIVISION II
                                                                                                           20114JUN24 AM 9 : U5




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                         DIVISION II

KEVIN ANDERSON,                                                                  No. 44388 -1 - II


                                         Appellant, .


          v.




CHARLES HAMON, M.D.,                                                       UNPUBLISHED OPINION


                                         Respondent.



          LEE, J. —         Kevin Anderson appeals the jury' s verdict finding Dr. Charles Hamon was not

negligent in Anderson' s care. Anderson argues that the trial court erred in admitting evidence of

his   past   drug    use    for the   purposes   of   proving contributory   negligence.    We hold that the trial


court   did    not abuse      its discretion   by     admitting the   evidence under   ER 401      and   ER 403.    We


affirm.




                                                            FACTS


                                                         I. BACKGROUND


          Anderson began dating Jennifer Ray in September 2005, while they both lived in Hawaii.

In    February   2006, Anderson          moved      in   with
                                                                Ray. Shortly after, Anderson began complaining

about    being      sick.     On March 21, 2006, Anderson went to urgent care with a headache and


congestion.         The urgent care center diagnosed Anderson with a sinus infection and prescribed


antibiotics.     On March 22, Anderson began suffering from                 a severe   headache,   nausea,   vomiting,
No. 44388- 1- II



and photophobia. Anderson went to the emergency room. The emergency room performed a CT

scan, determined that he had a severe sinus infection, and sent him home to continue his


antibiotics.




         Over the next several weeks, Anderson' s congestion improved, but his headache never


fully   resolved.       On   May   4„   Anderson and Ray flew from Hawaii to Arizona to visit friends.

During    the    trip   to Arizona, Anderson'          s   condition   declined.        He was tired and had a severe


headache,    photophobia, anorexia (           loss   of appetite), nausea, and          vomiting.        After a few days in


Arizona,    Ray and Anderson flew to Seattle to visit Ray' s family on Bainbridge Island.

Anderson'    s   condition       continued    to    worsen.    During the first two days on Bainbridge Island,

Anderson stayed in bed the entire time, did not eat, and continued to experience a severe

headache and photophobia.


         On the morning            of   May 11, Ray         convinced       Anderson to        see    a   doctor.   Ray drove

Anderson to       see   Dr. Hamon.       Hamon performed a physical examination, took a medical history,

and performed a neurological exam.                   Anderson presented with a severe headache, photophobia,


malaise,    anorexia, nausea,        fever,   and chills.     Hamon diagnosed Anderson with a chronic sinus


infection   and gave      him    another course of antibiotics, a           decongestant,       and pain medication.      Ray

brought Anderson home, and he returned to bed. The next morning, Ray spoke with Anderson at

approximately 9: 30 before           leaving       the house to     spend   the   day   with   her   mother and sister.   Ray

returned    home    at   6: 30   PM and checked on         Anderson.        Ray heard Anderson snoring and decided

to let him stay asleep. At 7: 30 PM Ray attempted to wake Anderson, but he did not wake up; Ray

thought he was " knocked out" from the pain medication: At approximately 8 PM, Ray attempted




                                                                2
No. 44388- 1- 11



to wake Anderson, but he was unresponsive. Ray' s sister called 911, and the responding medical

personnel airlifted Anderson to Harborview Medical Center.

        At Harborview, Anderson was diagnosed with a brain abscess. The CT scan revealed a 7

cm abscess (   roughly the      size and volume of a               baseball).     Anderson had an initial craniotomy to

drain the abscess, a sinus surgery, and a subsequent craniotomy. Eventually, Anderson regained

consciousness and      began      physical   therapy. Anderson was discharged from Harborview on July

4, 2006.   Anderson has permanent injuries resulting from his brain surgeries, including loss of

use of his right hand, blindness, and cognitive impairments.

                                                            II. PROCEDURE


        On     January    13,   2010, Anderson filed a medical malpractice claim against Hamon,


alleging that Hamon breached the standard of care by failing to refer Anderson to a specialist or

an   emergency     room   for further treatment.               Hamon denied the allegation and pled contributory

negligence as an affirmative defense. Prior to trial, Anderson filed a motion in limine to exclude


any   evidence related    to Anderson'           s   history   of   drug   use.    Hamon argued that Anderson' s drug

use, particularly cocaine and methamphetamine, were relevant to a defense of contributory

negligence.'       The trial court allowed Hamon to introduce evidence of Anderson' s cocaine and


methamphetamine use          as   it   relates   to the     cause of    Anderson'     s   brain   abscess.   During the trial,

Anderson continued to raise his objection to the admissibility of any evidence of his drug use.

        At trial, Ray testified that Anderson told her he had used drugs including cocaine, but that

Anderson     did   not use   drugs      while        they   were    together.     Dr. Michael Kovar, one of Hamon' s


1 In an action based on fault seeking to recover damages for injury or death to a person, any
contributory fault chargeable to the claimant diminishes proportionately the amount awarded as
compensatory damages for an injury attributable to the claimant's contributory fault, but does not
bar recovery. RCW 4. 22. 005.


                                                                    3
No. 44388 -1 - II


experts, testified that Anderson' s charts from Harborview noted cocaine use and that use of


cocaine and methamphetamine can contribute to the development of a sinus infection and brain

abscess.




             Anderson presented expert testimony from several doctors who testified that Hamon

breached the standard of care by failing to refer Anderson to a specialist, to the emergency room,

or for a CT scan. Hamon, on the other hand, presented expert testimony of several doctors who
                                                                                  2
testified that Hamon          did   not   breach the       standard of care.




             The trial court specifically instructed the jury as to Hamon' s affirmative defense of

contributory negligence:


                      In   addition, [    Hamon] claims as an affirmative defense that the plaintiff
             was contributorily negligent in one or more of the following respects:

                               By drugs that ultimately caused the sinusitis that escalated into a
                               large brain abscess over the course of several months, causing
                               substantial injuries.


Clerk'   s    Papers ( CP)     at   619.       The    jury    was   given     a       special   verdict   form that   asked: "   Was


defendant Charles Hamon, M.D.                   negligent      in his    care of plaintiff       Kevin Anderson ?" CP at 636.


The   jury    answered "[     N] o."      CP   at   636.   The jury did not reach the additional questions regarding

proximate        cause,     Anderson'      s   damages,       and   Anderson'          s   contributory   negligence.    Anderson


appeals.



                                                              ANALYSIS


             Anderson argues that the trial court erred by admitting the evidence of his past drug use

because it      was   irrelevant     under     ER 401       and   unfairly   prejudicial under        ER 403.    The evidence of




2 It appears that Anderson and Hamon each called four doctors but the record before us on appeal
does not include all of the trial testimony from each doctor.


                                                                     4
No. 44388- 1- 11



Anderson' s drug use was relevant to support Hamon' s theory of contributory negligence;

therefore, the   evidence was          properly      admitted under       ER 401.      In addition, the probative value of


the evidence was not substantially outweighed by any prejudice resulting from the admission of

the evidence under ER 403.


         We    review    a    trial    court' s     evidentiary       rulings   for    an   abuse   of   discretion.     Mut. of

Enumclaw Ins. Co.        v.    Gregg Roofing,              Inc., 178 Wn.        App.   702, 728, 315 P. 3d       1143 ( 2013),

review   denied, 180 Wn.2d 1011 ( 2014). " Therefore, we will overturn the trial court' s ruling on


the admissibility of         evidence      only if its decision [          is] manifestly unreasonable, exercised on

untenable grounds, or         based     on untenable reasons."             Mut. of Enumclaw, 178 Wn. App. at 728.

Only   relevant evidence       is   admissible.        ER 402. "       Relevant evidence has any tendency to make a

fact   of consequence more            likely   or   less   likely;   this definition   sets a   low threshold."        Gorman v.


Pierce   County,   176 Wn.       App. 63,         84, 307 P. 3d 795 ( 2013) ( citing ER 401), review denied, 179


Wn.2d 1010 ( 2014).          The trial court may exclude relevant evidence if the probative value of the

evidence is outweighed by the risk of unfair prejudice. ER 403.

         Here, evidence of Anderson' s drug use was relevant to Hamon' s contributory negligence

defense.    Specifically, the evidence regarding Anderson' s use of drugs ingested through nasal

passages was relevant to whether Anderson' s drug use caused or contributed to his sinusitis or

the development     of   his brain       abscess.      Therefore, we hold that evidence of Anderson' s drug use

meets the standard for relevant evidence in ER 401 and is presumed admissible under ER 402.


         But, Anderson argues that the evidence of his drug use was so prejudicial that it should

have been     excluded under        ER 403. We disagree.
No. 44388 -1 - II



          In certain circumstances, improperly admitted evidence can result in enduring prejudice

that requires reversal. For example, in Bertsch v. Brewer, the trial court erroneously admitted the

plaintiff' s   unfavorable     psychological         profile.        97 Wn.2d. 83, 85 -87, 640 P. 2d 711 ( 1982).


Although the evidence was admitted for the purposes of damages, an issue the jury never

reached, the appellate court stated:



          The derogatory description of [the plaintiff] undoubtedly prejudiced the jurors as
          to [ the plaintiff s] credibility, which reflected directly on many crucial issues,
          including informed consent, the causal relationship between [ the defendant' s]
          treatment and [ the plaintiff' s] recurring symptoms, and contributory negligence.

Bertsch, 97 Wn.2d        at   88.     Because the improper evidence was so damaging to the plaintiff' s

credibility, the court held that its improper admission was reversible error. But here, Anderson' s
                                             3
credibility    was never an         issue.       Furthermore, the limited evidence that was admitted did not


present    a   particularly    derogatory          description       of   Anderson.   Rather, the   evidence simply

established that in December 2005, Anderson had used drugs while staying with his parents and

there was a note in his Harborview medical file stating that someone had reported Anderson was

a   daily drug   user.   Therefore, any prejudicial effect of the evidence related to Anderson' s past

drug use cannot be said to be so enduring that reversal is required.

          Thus, while there is always a risk that evidence will result in some prejudice to one party

or the other, the record does not support Anderson' s claim that any probative value of the

evidence as to the cause of Anderson' s sinusitis or brain abscess was substantially outweighed by

the unfair prejudice resulting from the limited evidence regarding his drug use. Accordingly, we




3
 Anderson testified that he could not remember anything from the time he and Ray left Maui
until he was in physical therapy three to four weeks after being admitted to Harborview.


                                                                 6
No. 44388 -1 - II



hold that the trial court did not abuse its discretion in admitting the limited evidence regarding

Anderson' s drug use.

        We affirm.


        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. 60. 040, it is so ordered.




We concur:




                                                7
