              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

REBECCA LAMONTE, a single                        No. 69115-5-1
individual,
                                                 DIVISION ONE
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SHERMAN COOK and JANE DOE                                                                *£&*

COOK, husband and wife and the                                                           ««**•
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marital community composed thereof,              UNPUBLISHED OPINION
                                                                                             ro
                                                                                                 u

                         Defendants,

RICHARD WESTERFIELD and JANE
DOE WESTERFIELD, husband and
wife and the marital community
composed thereof,

                         Respondents.            FILED: March 3, 2014

       Schindler, J. — Rebecca LaMonte, Sherman Cook, and Richard Westerfield

were involved in a three-car rear end collision. Following a three-week trial, the jury

found Westerfield and nonparty Cook were negligent but only Cook was the proximate

cause of LaMonte's injuries. The court entered judgment on the verdict dismissing the
claims againstWesterfield with prejudice. LaMonte argues the trial court erred by (1)
granting Westerfield's motion to withdraw admissions by default under CR 36(b), (2)
ruling the admissions of nonparty Cook were hearsay, and (3) allowing Westerfield to
No. 69115-5-1/2


introduce testimony from the perpetuation deposition of Cook. We affirm.

                                         FACTS

1997 Car Accident

      At approximately 12:30 p.m. on May 30, 1997, Rebecca LaMonte was driving

westbound on Interstate 405 (I-405) in a Chrysler Concorde. It was raining heavily and

the road was wet. Sherman Cook was behind LaMonte's car in his Volvo station

wagon. A van was behind Cook's car. Richard Westerfield was driving behind the van

in a Geo Metro. As LaMonte was approaching the Interstate 5 (I-5) overpass, she was

in the right-hand lane and saw traffic was stopped ahead. LaMonte stepped on her

brakes to stop. Cook's car hit the rear end of LaMonte's car. The van immediately

swerved and moved into the left lane to avoid the collision. Westerfield was unable to

stop and hit the rear end of Cook's Volvo. The Volvo came to a stop on the left-hand

shoulder of the highway.

       In her witness statement to the Washington State Patrol (WSP), LaMonte states

that she stopped quickly. LaMonte said that after she stopped, she was hit from behind,

pushing her car forward into the vehicle in front of her and deploying the airbag.

       In his witness statement to the WSP, Cook states that "the car in front of me

made a[n] emergency stop for another accident. I was making a[n] emergency stop as

well. The car behind me hit my car. I hit the car in front of me. My car is totaled. Hit

from back and front." In his witness statement to the WSP, Westerfield states, "Driving

behind Volvo - rain &wet pavement. Volvo swerved when braking; I could not stop in

time - impacted Volvo from rear. No other cars hit me (I was last in line)."
No. 69115-5-1/3


2000 Lawsuit

       On March 3, 2000, LaMonte filed a personal injury lawsuit against Cook and

Westerfield. LaMonte alleged Cook and Westerfield "operated their vehicles in a

negligent and careless manner so as to cause their vehicles to collide with the plaintiffs

vehicle." The lawsuit claimed LaMonte "sustained serious and permanent injuries,

including, but not limited to, Fibromyalgia."

       On April 3, LaMonte filed an amended complaint. The amended complaint

alleged, in pertinent part:

       The plaintiff's vehicle was stopped for traffic ahead of her, which was
       stopped due to a[n] earlier vehicle collision which blocked her lane of
       travel, when Defendant COOK's vehicle collided with the rear of plaintiff's
       vehicle, and/or then Defendant WESTERFIELD failed to stop the vehicle
       he was operating and collided into Defendant COOK's vehicle, which then
       collided into plaintiffs vehicle.

       On April 4, LaMonte served Cook with requests for admission. On April 8,

LaMonte served Westerfield at his residence in Puyallup with a copy of the summons

and the first amended complaint, the order setting civil case schedule, interrogatories,

requests for production of documents, and requests for admission.

       On May 4, Westerfield filed an answer and affirmative defenses. Westerfield

denied the collision with Cook caused Cook's car to hit LaMonte's car. Westerfield

asserted as an affirmative defense that LaMonte was negligent and any injuries or

damages were caused by "some other person."

       On May 15, Cook sent LaMonte's attorney responses to the requests for

admission. In response to the request to admit that "because Richard Westerfield's

vehicle collided with your vehicle, your vehicle collided with the rear end of Rebecca

LaMonte's vehicle on southbound I-405 at or near the I-5 southbound exit ramp in King
No. 69115-5-1/4


County, Washington," Cook answered, "Admit."

       On May 31, LaMonte's attorney sent a letter to Westerfield's attorney concerning

the outstanding response to interrogatories. The letter states that "this office forwarded

interrogatories to your offices, on behalf of the Defendants Westerfield, on or about April

4, 2000," and asks for "an approximate date of when we can expect to receive the

answers." The letter makes no mention of the requests for admission.

       Westerfield responded to the interrogatories three days later. In response to the

interrogatory asking Westerfield to describe the collision, Westerfield states that after

Cook rear-ended LaMonte, his car "ran into the rear of the Cook vehicle."

       INTERROGATORY NO. 4:
       Describe in detail the collision at issue in this case:
              a.     When and where the collision occurred;
              b.     What happened, and how;
              c.     Who was involved in the accident;
              d.     Why the accident happened;
              e.     Who, if anyone, appeared hurt in any way:
       ANSWER:
              a.     May 30, 1997, at approximately 12:30 p.m. I-405 south, 100
                     feet before the I-5 onramp in Tukwila, King County,
                     Washington.
              b.     It had been sunny, and at the time of the accident it was
                     raining heavily. There were four and possibly five vehicles
                     directly involved. While crossing over southbound I-5, all
                     vehicles were in lane 1. There was an unknown driver, who
                     I believe was in a red van, who was first in line, and who I
                     later learned had been in a prior accident, and who was
                     stopped. The plaintiff stopped abruptly behind the red van,
                     and Mr. Cook apparently struck the rear of the plaintiffs
                     vehicle, the vehicle in front of me swerved, and at that point,
                     I saw what had developed, was unable to stop my vehicle,
                     and ran into the rear of the Cook vehicle. I believe the Cook
                     vehicle was a Volvo station wagon.
              c.     The parties hereto, and the unidentified driver of the red van
                      described above.
              d.      Because of the accident involving the red van, and the
                      drivers behind it coming to an abrupt stop.
              e.      No one.
No. 69115-5-1/5




      In March 2001, Cook and LaMonte entered into a covenant judgment settlement

agreement. Cook agreed to pay policy limits of $25,000 and LaMonte agreed to not

execute on any judgment against Cook beyond policy limits. On May 4, the court

entered an order determining the $25,000 settlement was reasonable and "that any

potential claims for contribution against Mr. Cook are hereby discharged pursuant to

RCW 4.22.060(2)."1 On May 7, the court entered an amended order scheduling the trial

to begin on February 25, 2002.

February 2002 Trial Date

      Cook was hospitalized in 2001 for a heart condition and was on dialysis for

kidney failure. The parties took a perpetuation deposition of Cook on May 3, 2001 and

December 26, 2001.

      Westerfield retained accident reconstruction expert Richard Chapman to testify at

trial. Chapman issued his report on December 11, 2001. Chapman's report states,

"There is no obvious physical evidence to support a conclusion that the Cook Volvo

struck the rear of the LaMonte Chrysler two separate times." According to Chapman,

when Cook's vehicle hit LaMonte's car, Cook was steering to his left and "the right half

of the front of the Cook vehicle ... made contact with the left half of the rear of the

LaMonte vehicle." Chapman concludes Westerfield was travelling at about 10 miles per

hour in his Geo Metro when he struck Cook's car, and that the damage to the rear of

LaMonte's car reflects an impact at a much greater speed. Chapman states that

       1The terms of the settlement state, in pertinent part:
       •    Upon courtapproval of the proposed settlement, my client's carrierwill pay $25,000
            (USAA policy limits) to you and your clients' trust account.

       •    Your client will execute a satisfaction of the judgment promptly upon entry of a final
            judgment in the action (e.g., following the jury trial).
No. 69115-5-1/6


Westerfield's front bumper hit the rear bumper of Cook's Volvo and the impact between

Cook's car and LaMonte's car caused "far more severe" damage to the front of Cook's

vehicle than the damage from the rear impact with Westerfield.

      Chapman's report states, in pertinent part:

              5. The damage on the front of the Westerfield Geo is consistent
      with an impact speed of approximately 10 miles per hour when that Geo
      struck the rear of the Cook Volvo (see Photo 5 & 6). A 1989 Geo Metro
      striking the rear of a stopped 1984 Volvo station[ jwagon at a speed of
      approximately 10 miles per hour would result in the Volvo being
      accelerated to a speed of approximately 5 miles per hour or less. The
      Volvo would then have moved forward and struck the rear of Ms.
      LaMonte's stopped Chrysler at a speed of 5 miles per hour o[r] less. The
      damage actually sustained by the rear of Ms. LaMonte's vehicle and the
      front of Mr. Cook's vehicle certainly reflects an impact speed much greater
      than 5 miles per hour for the Volvo when it struck the rear of the stopped
      Chrysler.

       On "a more likely than not basis," Chapman states that Cook's Volvo rear-ended

LaMonte's Chrysler "only once" and Westerfield's car rear-ended Cook after Cook's car
came to a stop at an angle. The report states, in pertinent part:

               1. The Volvo driven by Mr. Cook struck the rear of the Chrysler
      driven by Ms. LaMonte only once after Mr. Cook was not able to stop his
      Volvo once Mr. Cook was able to first see Ms. LaMonte's vehicle stopped
       in his traffic lane.
               2. Mr. Westerfield's Geo struck the rear of Mr. Cook's Volvo after
       the Volvo had come to a stop, angled to the left within the right traffic lane.
       Damage to the three involved vehicles does not indicate that this impact
       was sufficient to accelerate the Volvo into the Chrysler with sufficient
       speed to cause the damage on the front ofthe Cook Volvo and the rearof
       the LaMonte Chrysler.

       In December 2001, Westerfield filed a disclosure of possible primary witnesses

and identified Chapman as an accident reconstruction expert. In February 2002,
Westerfield and LaMonte filed a "Joint Statement of Evidence." LaMonte identified

accident reconstruction expert Bryan Jorgensen and approximately 10 medical experts.
No. 69115-5-1/7


Westerfield identified Chapman and four medical experts.

       Pretrial, Westerfield filed a motion to exclude expert testimony on fibromyalgia.

The court granted the motion. The parties agreed to stay the trial pending the decision

in an appeal in another case concerning expert testimony on fibromyalgia.

      The court entered a number of orders continuing the trial date. Approximately 10

years later, the court scheduled the trial to begin on May 14, 2012.

May 14. 2012 Trial Date

       On March 9, 2012, LaMonte's attorney contacted Westerfield's attorney about

the requests for admission served on April 8, 2000. Westerfield's attorney said that the

firm did not have "proof of service of Defendant Westerfield's admissions/denials to the

requested [requests for admission]." LaMonte refused to give Westerfield the

opportunity to respond to the requests for admission.

       The requests for admission ask Westerfield to admit or deny that nothing

obstructed his "view of the stopped southbound traffic" on I-405; that "there were no

emergent or unusual circumstances at the time ofthe collision;" that LaMonte was "in no
way responsible, nor negligent in any manner;" that the collision with Cook's vehicle
caused Cook's car to collide with LaMonte's vehicle; and that Westerfield was "liable for

the injuries sustained by Rebecca LaMonte," including neck and back injuries as well as

fibromyalgia.2


       2The requestsfor admission state, in pertinent part:
       REQUEST FOR ADMISSION NO. 8:             Please admit or deny that there was nothing
                 obstructing your view ofthe stopped southbound traffic on southbound I-405 at or
                 near the I-5 southbound exit ramp in King County, Washington on May 30, 1997
                 at approximately 12:30 p.m.

       REQUEST FOR ADMISSION NO[.] 9:             Please admit or deny that there was nothing
                 obstructing your view ofSherman Cook's stopped vehicle on southbound I-405 at
No. 69115-5-1/8




             or near the 1-5 southbound exit ramp in King County, Washington, on May 30,
             1997, at approximately 12:30p.m.[ ]

      REQUEST FOR ADMISSION NO[.] 10: Please admit or deny that there was nothing
           obstructing your view of Rebecca LaMonte's stopped vehicle on southbound I-
           405 at or near the I-5 southbound exit ramp in King County, Washington, on May
           30, 1997, at approximately 12:30p.m.[ ]

      REQUEST FOR ADMISSION NO[.] 11: Please admit or deny that on May 30, 1997, at
           approximately 12:30[ ]p.m., you failed to stop for stopped traffic on southbound I-
           405 at or near the I-5 southbound exit ramp in King County, Washington.

      REQUEST FOR ADMISSION NO. 12:           Please admit or deny that on May 30,1997, at
             approximately 12:30 p.m., your vehicle struck Sherman Cook's vehicle priorto
             his impact with Rebecca LaMonte's vehicle on southbound I-405 at or near the I-
              5 southbound exit ramp in King County, Washington.

      REQUEST FOR ADMISSION NO. 14:            Please admit or deny that on May 30, 1997, at
              approximately 12:30[ ]p.m., because your vehicle collided with Sherman Cook's
              vehicle, Sherman Cook's vehicle collided with the rear end of Rebecca
              LaMonte's vehicle on southbound I-405 at or near the I-5 southbound exit ramp
              in King County, Washington.

      REQUEST FOR ADMISSION NO. 15:            Please admit or deny that on May 30, 1997, at
              approximately 12:30 p.m., prior to Sherman Cook's vehicle striking Rebecca
              LaMonte's vehicle, your vehicle struckSherman Cook's vehicle on southbound I-
              405 at or near the I-5 southbound exit ramp in King County, Washington

      REQUEST FOR ADMISSION [NO.] 16:           Please admit or deny that there were no
              emergent or unusual circumstances at the time of the collision between your
              vehicle and Sherman Cook's vehicle on May 30,1997, at approximately 12:30
              p.m.

      REQUEST FOR ADMISSION NO. 18:            Please admit or deny that on May 30, 1997, at
              approximately 12:30 p.m., Rebecca LaMonte sustained injuries as a result ofthe
              subject collision on southbound I-405 at or near the I-5 southbound exit ramp in
              King County, Washington.

      REQUEST FOR ADMISSION NO. 19:            Please admit or deny that you are liablefor the
              injuries sustained by Rebecca LaMonte as a result ofthe rear end collision
              between Sherman Cook's vehicle and your vehicle on May 30, 1997, at
              approximately 12:30 p.m.

      REQUEST FOR ADMISSION NO. 20: Please admit or deny that as a result of the rear
           end collision between Sherman Cook's vehicle and Rebecca LaMonte's vehicle
              on May 30, 1997, at approximately 12:30 p.m., she sustained injuries to her neck
              and/or back.

       REQUEST FOR ADMISSION NO. 21: Please admit or deny that as a result of the rear
            end collision between Sherman Cook's vehicle and Rebecca LaMonte's vehicle
              on May 30, 1997, at approximately 12:30 p.m., she developed Fibromyalgia.
       REQUEST FOR ADMISSION NO. 22:           Please admit or deny that Rebecca LaMonte
              was in noway responsible, nor negligent in any manner, for the rear end collision
              in which you were involved on May 30, 1997, at approximately 12:30 p.m.
                                                  8
No. 69115-5-1/9


         On March 14, LaMonte filed "Plaintiffs Motion to Deem Requests for Admission

Propounded to Defendants Westerfield Admitted." In support, LaMonte's attorney

submitted a copy of the proof of service and requests for admission. The declaration of

service states that on April 8, 2000, Westerfield was served at his residence with a copy

of the summons and amended complaint, order setting civil case schedule,

interrogatories, requests for production of documents, and requests for admission.

         Westerfield opposed the motion to deem the requests for admission admitted.

Westerfield submitted a declaration from his attorney stating that the first time he

received any notice "that Requests for Admissions directed to Mr. Westerfield existed"
was on March 9, 2012 when LaMonte's attorney called him to ask "whether or not we

could show proof ofservice of answers to plaintiffs Requestsfor Admission, which I
was informed were served on April 8, 2000." The attorney states that after conducting

"an extensive and diligent search ofthe files and records in the undersigned's office," he
"found no evidence or indication that [the insurance company or] our office ever

received a copy of the Requests for Admission Propounded to Defendant Westerfield."
         Westerfield argued LaMonte waived her right to rely on the admissions.
Westerfield argued that the court should permit withdrawal ofthe admissions under CR
36(b):

         Throughout the entirety of these proceedings, the attorneys for plaintiff
         have conducted themselves as ifthe April 4, 2000 request for admissions
         never existed but now seek to impose a technical default on the
         defendants some 12 years later.

         Westerfield pointed out that he unequivocally denied liability in his answer to the
amended complaint. Westerfield also argued that LaMonte's decision to retain accident
reconstruction expert Bryan Jorgensen and his 2002 report demonstrated liability was
No. 69115-5-1/10


disputed:

          Clearly, by January of 2002, both plaintiff and defendant Westerfield had
          established that there were significant conflicts with regard as to how the
          accident occurred, and both parties had retained expert witnesses to
          advocate for both party's positions.

          In addition, Westerfield submitted a copy of the May 31, 2000 letter from

LaMonte's attorney addressing the outstanding answers to interrogatories but making

no reference to requests for admission. The May 31 letter from LaMonte's attorney

states:

                 As you may recall, this office forwarded interrogatories to your
          offices, on behalf of the Defendants Westerfield, on or about April 4, 2000.
          To date, we have not received the Defendants' answers to those
          interrogatories. Would you please provide me with a status of the
          answers to the interrogatories and an approximate date of when we can
          expect to receive the answers.

          Westerfield also notes that while "Request for Admission No. 21" asked

Westerfield to admit that LaMonte developed fibromyalgia as a result of the collision,

during the 2009 Frye3 hearing on the causation of fibromyalgia, "plaintiff was completely
silent as to Request for Admission No. 21."

          With the exception ofthe request that Westerfield admit he was liable for
LaMonte's injuries and that as a result of the collision she developed fibromyalgia,4 the
court granted LaMonte's motion to deem the requests for admission admitted.
          On May 7, LaMonte and Westerfield filed an "Amended Joint Statement of
Evidence." LaMonte identified accident reconstruction experts Jorgensen and Ward

          3Frve v. United States. 293 F. 1013,1014 (D.C. Cir. 1923) (evidence derived from a scientific
theory or principle is admissible only if the theory or principle has achieved general acceptance in the
relevant scientific community).
      4 REQUEST FOR ADMISSION NO. 19 states that "you are liable forthe injuries sustained by
Rebecca LaMonte as a result ofthe rear end collision between Sherman Cook's vehicle and your vehicle
on May 30, 1997." REQUEST FOR ADMISSION NO. 21 states that "as a result of the rear end collision
..., [LaMonte] developed Fibromyalgia."
                                                     10
No. 69115-5-1/11


Bruington. Westerfield identified accident reconstruction expert Charles Lewis.5 On
May 7, Westerfield also filed a "Motion to Withdraw or Amend Plaintiff's Requests for

Admissions to Defendants Westerfield Deemed Admitted." Westerfield argued the

failure to allow withdrawal of the admissions would deny Westerfield the opportunity to

present a defense on the merits and LaMonte had not established prejudice.

Westerfield's attorney argued, in pertinent part:

            From the inception of this case, the subject matter of these
       Requests has been denied or challenged, as the claims against Mr.
       Westerfield have been defended. The so-called two impact theory was
       alleged in plaintiff's Complaint and was denied in defendants' Answer. Mr.
       Westerfield answered interrogatories that described the sequence of
       events involved in the accident, to include the swerving of the van in front
       of him which blocked his view of Cook's and plaintiff's vehicles.
       Westerfield retained and disclosed accident reconstructionist Richard
       Chapman in 2001, who opined that the physical evidence did not". . .
       support a conclusion that the Cook Volvo struck the rear of the LaMonte
       Chrysler two separate times." Understanding that how this accident
       occurred was hotly contested and very much at issue, plaintiff, through her
       attorneys, retained and disclosed accident reconstruction expert Bryan
       Jorgensen to challenge the opinions offered by Mr. Chapman.
              In late 2011, plaintiff disclosed accident reconstruction expert Ward
       Bruington. In the disclosure for Mr. Bruington, it was his opinion that Mr.
       Cook's vehicle originally impacted Ms. LaMonte's vehicle, and that "[i]t is
       then likely that Mr. Westerfield rear ended Mr. Cook's vehicle driving the
       Cook vehicle back into the LaMonte vehicle... ." It is further worth noting
       that even in plaintiff[s] Second Amended Plaintiffs Witness and Exhibit
       List, plaintiff still includes Mr. Bruington and Mr. Jorgensen as witnesses to
       be called at trial. For the 12 some years that this case has been pending,
       the details as to how this accident occurred, and whether the actions of
       Mr. Westerfield has been hotly contested, and plaintiff has proceeded
       throughout the entirety of this case as if her April 4, 2000 Requests for
       Admissions never existed.161

       While Westerfield's motion to withdraw or amend the requests for admission was

pending, the case was reassigned to another judge for trial. On May 15, the judge

heard argument on the pending motion. The court granted Westerfield's motion to
       5Westerfield's previous accident reconstruction expert Chapman died in November 2011.
       6(Footnotes omitted) (alterations in original).
                                                11
No. 69115-5-1/12


withdraw the admissions by default. The court expressly found that LaMonte had not

established prejudice.7 The court also entered an order dismissing Cook as a party to

the lawsuit.

         At the beginning of the trial, LaMonte argued she was entitled to use the Cook

admissions during opening statement and to rebut the testimony of the defense

accident reconstruction expert. Westerfield argued the admissions were inadmissible

because Cook was no longer a party to the action. The court ruled that the Cook

admissions were hearsay and LaMonte could not refer to the admissions during

opening statement or in her case in chief.

         During the three-week jury trial, more than 20 witnesses testified including
LaMonte, Westerfield, and accident reconstruction experts Jorgensen, Bruington, and

Lewis.

         LaMonte testified that as she was approaching the I-5 overpass, she put on the

brakes and stopped after she suddenly saw "brake lights, all the brake lights were
stopping in front of me." LaMonte said that she "was hit from behind, the air bag
deployed, Iwas hit again, and the last thing Iremember is my head falling into the
deflated air bag." On cross-examination, LaMonte admitted that in a 1997 recorded
interview, she said that she could not be sure whether there were two impacts.
         Before calling accident reconstruction expert Jorgensen, LaMonte argued she
was entitled to introduce the Cook admissions because Jorgensen relied on the


         7The court stated, in pertinent part:
         Ihave significant concerns about the appellate issues at play here, and Ihave a
         significant concern whether Judge McCullough's decision will be reversed for abuse of
         discretion in failing to have an adequate record of prejudice to the plaintiff    Ithink at
         this point it would be an abuse of discretion for me not to consider the prejudice issue
          and what Ithink is an evidentiary deficiency in terms ofthe lack of prejudice.
                                                      12
No. 69115-5-1/13


admissions in forming his opinion.

       The court ruled that LaMonte's expert could testify about the Cook admissions.

The court instructed the jury that the admissions were Cook's and not Westerfield's.

       Jorgensen testified that in his opinion, "Westerfield strikes Cook and Cook strikes

LaMonte again, but on the corner this time." LaMonte's attorney displayed the Cook

admissions and asked Jorgensen to read the admissions and to explain the significance

of the admissions. Jorgensen testified that he relied on Cook's written statement to the

police and Cook's response to the requests for admission. Jorgensen testified, in

pertinent part:

       [B]ecause Richard Westerfield's vehicle collided with [Cook's] vehicle,
       [Cook's] vehicle collided with the rear ofthe LaMonte vehicle. And that
       was admitted. And that - that was important as a cause and effect
       relationship to the accident event.

On cross-examination, Jorgensen admitted he did not review Cook's response to the
requests for admission until two weeks before trial.
       LaMonte's other accident reconstruction expert Bruington also testified that after

Westerfield's car hit Cook, Cook's car hit LaMonte's car "a second time." Bruington

testified, in pertinent part:

       [Mr. Cook] can't stop in time and crashes into the back of Ms. LaMonte's
       Chrysler.
             And then behind Mr. Cook there's a mention of a van. This van
       isn't involved in the crash. It - it turns off and gets to the shoulder of the
       road. And behind that van is Mr. Westerfield driving a Geo. And then he
       crashes into Mr. Cook's Volvo. And that causes Mr. Cook's Volvo to crash
        into Ms. LaMonte's Chrysler a second time.

        Westerfield testified that on the day of the accident, there was heavytraffic and

the "road spray was really bad." Westerfield said that when his car hit Cook's, "it
shoved [Cook] about three feet, maybe, into the I'll call it the left lane, and at the same

                                             13
No. 69115-5-1/14


time [Cook] accelerated, continuing on in the left lane."

       Defense accident reconstruction expert Lewis testified that the impact of

Westerfield's car did not cause Cook's car to hit LaMonte's car a second time. Lewis

testified, in pertinent part:

              The 1,600 pound Geo Metro that Mr. Westerfield was operating
       then collided with the rear of [Cook's] Volvo and shoved it into the
       oncoming lane partially....
               The Geo Metro did not drive the Volvo into the rear of the LaMonte
       vehicle and did not cause a second impact between the Volvo and
       [LaMonte's] Chrysler.

During cross-examination, Lewis testified that in reaching his conclusion, he relied in

part on the testimony Cook gave in the perpetuation deposition that his car ended up on

the side of the road.

        Before redirect, Westerfield asked for permission to play excerpts from the

videotaped perpetration deposition of Cook. After reviewing the videotape ofthe
deposition, the court ruled Westerfield could play excerpts of the perpetration
deposition. The court ruled the videotaped deposition was "clearly" a perpetuation
deposition and Cook's deposition testimony was not contrary to his admissions—Cook
"just says he can't remember, which is different than it being contrary" to the admission.
The court also ruled that during the cross-examination of Lewis, LaMonte had opened

the door to the deposition testimony.

        Westerfield played excerpts ofthe videotaped perpetration deposition during the
redirect of Lewis. In the first deposition, Cook states he is not sure whether Westerfield

hit his car before or after he hit LaMonte.

               QUESTION: Do you know whether or not Mr. Westerfield struck
        the rear of your car before or after you initially made impact with the
        LaMonte vehicle?


                                              14
No. 69115-5-1/15


             ANSWER:        I have no idea. It was too quick, too fast to - I - I
      have no idea.

In the second deposition, Cook stated he did not know whether Westerfield's car

knocked him into LaMonte's car. Cook testified, "I don't remember the sequence."

      The written jury instructions reiterate that the answers to the requests for

admission of nonparty Cook do not bind Westerfield. Jury "Instruction No. 20" states:

      Non-party entity Sherman Cook's Answers to Requests for Admission
      served by plaintiff have been admitted for a limited purpose. These
      answers may be considered by you for the limited purpose of forming the
      basis of the experts' opinions, and for no other purpose. These answers
      are binding on Sherman Cook, but defendant Westerfield is not bound by
      Cook's answers.

      Jury "Instruction No. 18" states that if the juryfinds more than one entity

negligent, it should determine what percentage of negligence was attributable to each

entity. The instruction states that entities may include Westerfield and nonparty Cook.

Jury Instruction No. 18 states:

               If you find that more than one entity was negligent, you must
       determine what percentage of the total negligence is attributable to each
       entity that proximately caused the injury to the plaintiff. The Court will
       provide you with a special verdict form for this purpose. Your answers to
       the questions in the special verdict form will furnish the basis by which the
       court will apportion damages, if any.
              Entities may include the defendant Richard Westerfield and non
       party Sherman Cook.




                                               15
No. 69115-5-1/16


       The jury found Westerfield and Cook were negligent but that only nonparty

Cook's negligence was a proximate cause of the injury to LaMonte.8 The court entered
a judgment on the verdict dismissing the claims against Westerfield with prejudice.

                                              ANALYSIS

       LaMonte argues the trial court erred by (1) granting Westerfield's motion to

withdraw the admissions by default under CR 36(b), (2) ruling Cook's admissions were

hearsay, and (3) allowing Westerfield to introduce into evidence testimonyfrom the

perpetuation deposition of Cook.

       1.   Withdrawal of Admissions

       LaMonte asserts the court abused its discretion in allowing Westerfield to

withdraw the admissions under CR 36(b).9 We review the trial court's decision on a
motion to withdraw or amend admissions under CR 36 for an abuse of discretion.

Santos v. Dean, 96 Wn. App. 849, 857-58, 982 P.2d 632 (1999). Atrial court abuses its

       8The special verdict form states, in pertinent part:
              We, the jury, answerthe questions submitted by the court as follows:
                 QUESTION NO. 1: Were any of the following negligent?
                 (Answer "yes" or "no" after the name ofthe defendant and each entity not party to
       this action.)
                Answer:                                  Yes             No
                 Defendant, Richard Westerfield          _X_
                 Non-Party, Sherman Cook                  X
                (If you answer Question No. 1 "no" as to the defendant, sign and return this
       verdict. If you answer Question No. 1 "yes" as to the defendant, then answer Question
       No. 2.)
                 QUESTION NO. 2: Was such negligence a proximate cause of injury to the
       plaintiff?
                 (Answer "yes" or"no" after the name ofthe defendant and the name ofeach
       entity, ifany, found negligent by you in Question No. 1.)
                 Answer:                                 Yes              No
                 Defendant, Richard Westerfield                          _X_
                 Non-Party, Sherman Cook                 _X_
       9Preliminarily, LaMonte contends the trial judge did not have the authority to reconsider the
decision granting her motion to deem admitted the requests for admission propounded to Westerfield.
We disagree. Atrial judge has the authority to reconsider a ruling made by another judge. In re Estate of
Jones 170 Wn. App. 594, 605-06, 287 P.3d 610 (9m?y rpp also Adcox v. Children's Orthopedic Hosp. &
Med. Ctr.. 123 Wn.2d 15, 37, 864 P.2d 921 (1993). The record establishes thatWesterfield's motion to
withdraw oramend the requests for admission was pending when the case was transferred for trial.
                                                    16
No. 69115-5-1/17


discretion when its decision is manifestly unreasonable or is based on untenable

grounds. State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

      Requests for admission are deemed conclusively established under CR 36(b)

unless the court permits amendment or withdrawal of the admission. CR 36(b) states:

      Effect of Admission. Any matter admitted under this rule is conclusively
      established unless the court on motion permits withdrawal or amendment
      of the admission. Subject to the provisions of rule 16 governing
      amendment of a pretrial order, the court may permit withdrawal or
      amendment when the presentation of the merits of the action will be
      subserved thereby and the party who obtained the admission fails to
      satisfy the court that withdrawal or amendment will prejudice him in
      maintaining his action or defense on the merits. Any admission made by a
      party under this rule is for the purpose of the pending action only and is
      not an admission by him for any other purpose nor may it be used against
      him in any other proceeding.

      The purpose of CR 36 is to" 'obtain admission of facts as to which there is no

real dispute and which the adverse party can admit cleanly, without qualifications.'"

Reid Sand & Gravel. Inc. v. Bellevue Props.. 7 Wn. App. 701, 704, 502 P.2d 480 (1972)

(quoting Weyerhaeuser Sales Co. v. Holden. 32 Wn.2d 714, 726, 203 P.2d 685 (1949)).

" 'Accordingly, requests for admissions as to central facts in dispute are beyond the

proper scope of the rule.'" Reid, 7 Wn. App. at 704 (quoting Pickens v. Equitable Life

Assurance Soc'v of the U.S.. 413 F.2d 1390, 1393 (5th Cir. 1969)).

       CR 36(b) permits the court to exercise its discretion to grant a motion to withdraw

admissions only if "presentation of the merits of the action will be subserved," and the

party who obtained the admission fails to show withdrawal will result in prejudice "in

maintaining his action or defense on the merits." Hadlev v. United States, 45 F.3d 345,

1348 (9th Cir. 1995); Santos, 96 Wn. App. at 858-59; see also Asea. Inc. v. S. Pac.




                                            17
No. 69115-5-1/18



Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981).10
         The first prong of the test is met when upholding the admissions would

"practically eliminate any presentation of the merits of the case." Hadlev. 45 F.3d at

1348. LaMonte concedes the first prong is met. We accept the concession as well

taken. The admissions are contrary to the position Westerfield steadfastly maintained

since 2000.

         LaMonte has the burden to establish the prejudice prong of the test. Hadlev, 45

F.3d at 1348. "The prejudice contemplated by Rule 36(b) is 'not simply that the party

who obtained the admission will now have to convince the factfinder of its truth.'"

Hadlev, 45 F.3d at 1348 (quoting BrookVill. N. Assocs. v. Gen. Elec. Co., 686 F.2d 66,

70 (1st Cir. 1982)).11 "The prejudice contemplated by Rule 36(b) 'relates to the difficulty
a party may face in proving its case'[,] 'e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain evidence' with respect to the

questions previously deemed admitted.'" Santos. 96 Wn. App. at 859, 860 (quoting
Fed. Deposit Ins. Corp. v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994); Hadlev, 45 F.3d at

1348).

         " 'The necessity of having to convince the trier of fact of the truth of a matter

erroneously admitted is not sufficient.'" Santos, 96 Wn. App. at 859 (quoting Prusia, 18
F.3d at 640). Under CR 36(b), the trial court must "focus on the prejudice that the
nonmoving party would suffer at trial." Conlon v. United States, 474 F.3d 616, 623 (9th


         10 In construing CR 36, the court ofappeals has looked to federal case law as persuasive
authority. Santos, 96 Wn. App. at 859.
        11 We note Hadlev misquotes Brook Village: however, the error does not change the meaning of
the quote. The correct Brook Village language states, "The prejudice contemplated by the Rule is not
simply that the party who initially obtained the admission will now have to convince the factfinder of its
truth." Brook Vill.. 686 F.2d at 70 (emphasis added).

                                                    18
No. 69115-5-1/19


Cir. 2007).12
       Here, the court ruled that LaMonte did not establish prejudice under CR 36(b).

The court ruled, in pertinent part:

       [T]he plaintiff has been on notice for years about the defense theory of the
       case and the plaintiff is represented by two able counsel, who are
       obviously prepared to rebut the defense case.
              So it's really hard to say that the plaintiff is prejudiced by having to
       present their case . . . because they're fully prepared to do that.

                ... I am a little concerned about the kind of the clear policy in the
       appellate case law favoring resolution on the merits as opposed to - and it
       would be a completely different matter if somebody had affirmatively
       answered X .. . and then they were stuck with the admission.
              But what we have here is a request for admission which apparently
       wasn't forwarded to counsel, then went unanswered. So it was deemed
       admitted, a significant period of time went by. . ..
               Clearly there was originally a denial on several bases in the original
       answer and actually motion practice and multiple instances in which the
       plaintiff was put on notice that liability was contested on various grounds.

       The record supports the determination that LaMonte did not meet her burden of

showing that withdrawal of the default admissions resulted in " 'the unavailability of key

witnesses'" or the " 'sudden need to obtain evidence with respect to the questions

previously deemed admitted.'" Santos, 96 Wn. App. at 859 (quoting Hadlev, 45 F.3d at

1348). When the case was initially scheduled for trial on February 25, 2002, LaMonte

identified an accident reconstruction expert witness to testify at trial. In the Amended

Joint Statement of Evidence filed one week before the scheduled trial date in May 2012,

LaMonte identified accident reconstruction experts Bruington and Jorgensen.

       Nonetheless, LaMonte argues that because the motion to withdraw the

admissions was made at the beginning of trial, the court erred in granting Westerfield's

motion to withdraw the default admissions under CR 36(b). LaMonte relies on Brook


       12 (Emphasis added.)
                                               19
No. 69115-5-1/20


Village to argue the court erred in failing to evaluate the prejudice prong under CR 36(b)

under a manifest injustice standard. Brook Village is distinguishable.

        In Brook Village, plaintiff Brook Village filed a lawsuit against General Electric

(GE) alleging modular housing units were defective, and propounded requests for

admission to GE. Brook Vill.. 686 F.2d at 68. GE responded to the requests for

admission nine months later. Brook Village immediately moved to strike the responses

and deem as admitted the requests for admission. The court granted the motion.

Brook Vill., 686 F.2d at 69. GE filed repeated motions asking the court to reconsider

and permit withdrawal of the admissions. The court denied the motions for

reconsideration and included the admission in the pretrial Federal Rule of Civil

Procedure (FRCP) 1613 order. Brook Vill.. 686 F.2d at 69, 71.
       At the conclusion of the bench trial, the court found GE liable and assessed

damages against GE. However, the court did not give conclusive effect to the

admissions on damages. Brook Vill.. 686 F.2d at 69-70. Instead, the court relied on the

testimony at trial. Brook Vill.. 686 F.2d at 69.

        On appeal, the First Circuit reversed, holding the trial court abused its discretion

by ignoring the admissions. Brook Vill., 686 F.2d at 73-74. The court held, "[A] party

who obtains an admission by default does not waive his right to rely thereon by

presenting evidence at trial that overlaps the matters controlled by the admission."

Brook Vill.. 686 F.2d at 72. The court concluded that because the admissions were part

of the FRCP 16 pretrial order, the trial court could amend the pretrial order only to

prevent manifest injustice; "a more restrictive standard" governs "a request to avoid the


          13 FRCP 16(e) provides, in pertinent part: "The court may modify the order issued after a final
pretrial conference only to prevent manifest injustice."
                                                     20
No. 69115-5-1/21


effect of an admission once trial [begins]." Brook Vill., 686 F.2d at 71.

       Here, unlike in Brook Village, LaMonte did not promptly file a motion to deem the

requests for admission admitted after serving them on Westerfield in April 2000.

Instead, unlike in Brook Village. LaMonte never mentioned the requests for admissions

until 12 years later before the trial in May 2012. Further, the court granted the motion to

withdraw the admissions by default under CR 36(b) before opening statements and the

presentation of evidence. See Hadlev, 45 F.3d at 1348 ("Courts are more likely to find

prejudice when the motion for withdrawal is made in the middle of trial."); 999 v. C.I.T.

Corp.. 776 F.2d 866, 869-70 (9th Cir. 1985) (affirming denial of motion to withdraw

admissions in "the middle of trial" when plaintiff had "nearly rested its case" where

plaintiff relied heavily on admission and withdrawal did not subserve merits); Pedroza v.

Lomas Auto Mall. Inc., 258 F.R.D. 453, 467 (D.N.M. 2009) (plaintiffs met burden of

establishing that withdrawal would prejudice them because parties had longstanding

understanding that subject matter of admission was undisputed).

       But even if a manifest injustice standard applied, the record supports the decision

to allow Westerfield to withdraw the default admissions under CR 36(b). There is no

dispute that Westerfield consistently denied liability, the parties engaged in lengthy

discovery, and the parties retained expert witnesses to testify on the contested issues of

liability and damages.

       2.   Cook Admissions

       LaMonte also argues the court erred by ruling the Cook admissions were

hearsay and precluding her from referring to the admissions in her opening statement.

This court reviews a trial court's evidentiary decision for abuse of discretion. Sintra. Inc.


                                             21
No. 69115-5-1/22


v. City of Seattle. 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997). Abuse of discretion

occurs only when no reasonable person would take the view adopted by the trial court.

Crescent Harbor Water Co. v. Lvseng, 51 Wn. App. 337, 344, 753 P.2d 555 (1988).

Admissions under CR 36 are subject to the rules of evidence. Walsh v. McCain Foods

Ltd.. 81 F.3d 722, 726 (7th Cir. 1996) (citing 8A Charles Alan Wright, et. al, Federal

Practice and Procedure: Civil 2d § 2264, at 571-72 (1994)); see ajso 3A Karl B.

Tegland, Washington Practice: Rules Practice CR 36, at 832 (6th ed. 2013).

      ER 801(d)(2) is an exception to the hearsay rule that allows the introduction of

admissions of a party opponent. Walsh. 81 F.3d at 726 (quoting 8A Wright, Federal

Practice and Procedure: Civil 2d § 2264, at 571-72 (" 'It is only when the [CR 36]

admission is offered against the party who made it that it comes within the exception to

the hearsay rule for admissions of a party opponent.'")). Because Cook was not a party

at the time of trial, the hearsay exception for admissions of a party opponent under ER

801(d)(2) did not apply. See 5B Karl B.Tegland, Washington Practice: Evidence

Lawand Practice § 801.34, at 387 (5th ed. 2007) (ER 801(d)(2) "does not authorize the

introduction of statements by, or on behalf of, someone who is not a party to the present

proceeding."); 5BTegland, Washington Practice: Evidence Law and Practice §

801.50, at 422 ("If a case begins as a multiparty case, but one of the parties is removed

from the case by dismissal, ... the admissions of the party who has been removed are

inadmissible against the party who remains in the case."). The court did not err by

ruling the admissions of nonparty Cook were hearsay.

       In any event, the trial court allowed LaMonte's accident reconstruction expert

Jorgensen to testify about the Cook admissions. During cross-examination of


                                           22
No. 69115-5-1/23


Westerfield's accident reconstruction expert, LaMonte also asked about the Cook

admissions and referred to the Cook admissions in closing argument. During closing

argument, LaMonte argued that Cook admitted there was a second impact to her car:

"[Y]ou have Mr. Cook's admission that 'I was knocked into LaMonte because

Westerfield rear-ended me.'" In rebuttal, LaMonte told the jury, "I want to remind you

that this is Mr. Cook's admission that [']because Richard Westerfield[ ]collided with

[Cook's] vehicle - [Cook's] vehicle collided with the rear-end of Becky LaMonte's

vehicle.f ]"

        3.   Admission of Perpetuation Deposition Testimony

        LaMonte contends the court erred by permitting Westerfield to introduce excerpts

from the perpetuation deposition of Cook into evidence. LaMonte asserts the deposition

testimony contradicts the responses to the requests for admission.14
        After viewing videotapes of the perpetuation deposition, the court concluded the

deposition testimony did not contradict Cook's admissions.15 The record supports the
court's determination. In response to the requests for admission, Cook admitted that

"because Richard Westerfield's vehicle collided with [his] vehicle, [his] vehicle collided

with the rear end of Rebecca LaMonte's vehicle." In his deposition, Cook states that he

could not be sure about the sequence of the events of the accident and that his car

came to a rest on the left-hand shoulder of the road.




         14 We deny the motion to supplement the record on appeal with the videotapes ofthe Cook
deposition. Thecourt may direct transmittal ofadditional clerk's papers and exhibits "[i]f the record is not
sufficiently complete to permit a decision on the merits of the issues presented for review." RAP 9.10.
Here, the report of proceedings contains a transcript of the deposition.
         15 Under CR 32(a)(3), "[t]he deposition of a witness, whetheror not a party, may be used byany
party for any purpose if the court finds ... that the witness is dead." ER 804(b)(1) provides that the
hearsay rule is inapplicable to deposition testimony taken in the courseofthe same proceeding if the
declarant is unavailable. A declarant is unavailable if he is dead. ER 804(a)(4).

                                                     23
No. 69115-5-1/24


      The record also supports the ruling that LaMonte opened the door to introduction

of the perpetuation deposition testimony. See State v. Warren, 134 Wn. App. 44, 64-65,

138 P.3d 1081 (2006). For example, during the cross-examination of accident

reconstruction expert Lewis, LaMonte asked whether Lewis relied on Cook's deposition

testimony:

             Q.        ... [W]e have very little evidence as to where the cars went.
      Isn't that true?
             A.        I believe just the testimony of the people who were in the
      vehicles.
             Q.        Right. And very little evidence as to what really happened to
      the vehicles after impact. Isn't that fair?
             A.        No physical evidence. Just Mr. Cook's description of his
      final position on the opposite shoulder.

             Q.        Okay. Would it be fair to say that in your simulation you did
       not consider the admission, ["]please admit or deny that on May 30,
       1997["] - and this is admission to Mr. Cook- ["]at approximately 12:30
       p.m., because Richard Westerfield's vehicle collided with your vehicle,!"]
       being Mr. Cook's vehicle, ["]your vehicle collided with the rear end of
       Rebecca LaMonte's vehicle.!"] You didn't consider that, correct?
            A.    I consider everything. I consider all testimony.
              Q.       You ignored this, though --
             A.        No.
              Q.       - for your simulation?
              A.       No. Idon't ignore anybody's testimony. Itry to see if it fits
       the physical facts and then Icome up with my analysis. And if this jury
       believes that Mr. Cook has more information and, you know, ifthis jury
       believes that declaration is accurate, then they will find accordingly.

              Q.         In doing your simulations -
              A.       Yes.
              Q.       - you ran your different scenarios?
              A.       Yes.
              Q.       You did not run a scenario that addressed Mr. Bruington's
       set of facts?
              A.      No. He came up with that on his own. I didn't know it
       existed until I read his deposition and saw his simulation.
              Q.         Right. But you did know that Mr. Cook in his admission had
       said that he was hit by the Geo into the LaMonte vehicle?
              A.         I did.



                                                24
No. 69115-5-1/25


      In sum, we conclude the trial court did not abuse its discretion by allowing

withdrawal of the admissions by default under CR 36(b), ruling the admissions of

nonparty Cook were inadmissible, and allowing Westerfield to introduce excerpts of the

perpetuation deposition, and affirm.




                                             SUO^WOQ                  o^-t

WE CONCUR:




                                            25
