                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                   December 23, 2015
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 DEBORAH PERALTA,                                                     No. 45575-7-II

                                Appellant,

         v.

 STATE OF WASHINGTON and                                          PUBLISHED OPINION
 WASHINGTON STATE PATROL,

                                Respondents.

       MELNICK, J. — Deborah Peralta filed a personal injury complaint against the Washington

State Patrol (WSP) alleging negligence after WSP Sergeant Ryan Tanner struck her with his

vehicle while she walked. After a jury trial, the trial court entered judgment against Peralta and

dismissed her complaint and claim with prejudice pursuant to the intoxication defense of RCW

5.40.060. Peralta appeals, arguing that the trial court erred when it (1) ruled that Peralta’s response

to WSP’s request for admission regarding intoxication constituted an admission that she was

intoxicated for purposes of RCW 5.40.060, (2) entered judgment for WSP, (3) excluded hearsay

statements about Tanner’s speed, (4) excluded deposition testimony of two WSP employees, (5)

excluded hearsay evidence about Tanner’s headlights, (6) compelled Peralta to disclose the identity

of her consulting witness, and (7) barred her from presenting an expert at trial. Peralta requests

entry of judgment for the share of WSP’s damages found by the jury or, in the alternative, for

reversal and remand for a new trial.

       First, the trial court incorrectly found that Peralta’s admission of intoxication satisfied the

statutory definition in RCW 5.40.060 and, as a result, it also incorrectly instructed the jury and

incorrectly entered judgment for WSP. Second, the trial court erred when it excluded testimony of
45575-7-II


two WSP employees without first ruling on whether they were speaking agents for WSP. Third,

the trial court abused its discretion when it excluded prior consistent statements because there was

an express or implied charge of recent fabrication. Fourth, the trial court should not have

compelled Peralta to identify her consulting expert witness. Lastly, the record on appeal is

insufficient for us to determine whether the trial court abused its discretion when it barred Peralta

from presenting an alcohol expert at trial. Because the trial court erred, we reverse and remand

for a new trial. We do not reach the remaining issues.

                                                FACTS

I.      OVERVIEW

        On the night of August 22, 2009, Peralta had been out with friends and had consumed

alcohol. Peralta called her brother for a ride home. Following a misunderstanding regarding her

location, Peralta’s brother told her to come out into the street so that he could see her. Peralta was

on the phone with her brother and stepped out into the street when Sergeant Tanner’s vehicle struck

her. She required hospitalization after sustaining serious injuries, including a brain injury.

        Peralta filed a complaint for personal injury on December 2, 2010. In its answer, WSP

asserted RCW 5.40.060’s intoxication defense as one of its affirmative defenses.                  During

discovery, WSP submitted to Peralta a request for admission regarding her intoxication at the time

of the collision. It stated, “Admit or deny that, at the time of the collision that is the subject of this

lawsuit, Deborah Peralta was under the influence of intoxicating liquors.” Clerk’s Papers (CP) at

146. Peralta responded, “Plaintiff admits.” CP at 146. Peralta never objected to the request for

admission or moved to withdraw her answer.




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II.     PRETRIAL MOTIONS

        A.       Intoxication Defense

        WSP moved the trial court to rule that for purposes of its affirmative defense, Peralta was

under the influence of intoxicating liquors as a matter of law and that she should be precluded from

offering any evidence that she was not under the influence of intoxicating liquor at the time of the

collision.

        Peralta objected and argued that her admission to being under the influence of intoxicating

liquors did not satisfy RCW 5.40.060(1) because the request for admission did not reference the

definition of “under the influence of intoxicating liquor” contained in the statute. She further

argued that she did not admit to that element.

        The trial court granted the motion in limine.

        B.       Evidence Regarding Tanner’s Speed

        WSP moved to exclude a paramedic’s testimony regarding Tanner’s speed because she

could not identify Tanner as the source of the statement and it was hearsay. The paramedic,

Heather Van Zandt, responded to the accident scene. She stated, “I stuck my head out [the

window] and asked the speed of travel—someone yelled 40-50 mph.” CP at 225.

        In response, Peralta argued that this evidence was admissible as an admission by a party-

opponent because Tanner admitted he responded to Van Zandt. In support of her position, Peralta

submitted a portion of Tanner’s deposition testimony in which he was asked about the statement

to paramedics:

        Q. Do you recall her yelling out the window and asking what was the speed?
               ....
        [Tanner]: I do recall at some point, I think—I’m not sure where they were at in the
        assessment or care of the patient. I recall one of the paramedics asking at some
        point—and I believe they were exiting the rear of the ambulance—for the
        approximate speed of the vehicle. And I recall saying about 40 miles per hour. I


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45575-7-II


        don’t believe I said 48 to 50 miles per hour. That could have been somebody else
        she asked. I’m not sure. I don’t know.
               . . . I recall answering that question with it about 40 miles per hour.

CP at 216-17. The trial court granted WSP’s motion because insufficient evidence existed to

believe that Tanner made the statement. However, the trial court invited Peralta to raise the issue

again during the trial.

        During Van Zandt’s testimony and outside the jury’s presence, Peralta again made an offer

of proof, inquiring whether Van Zandt was required to obtain an estimate of speed when

responding to a collision of this type. The trial court did not make a clear ruling on the issue on

the offer of proof and only stated “I can’t advise how to try the case, but at this point let’s bring

the jury back in and get her testimony, okay?” 2A Report of Proceedings (RP) at 252. Van Zandt

did not testify regarding the speed of the car at the time of the collision in the jury’s presence.

        C.      Blood Alcohol Measurement and Consulting Expert Witness

        At the hospital, a blood test established that Peralta had a 0.167 serum blood alcohol level.

For discovery purposes, the parties agreed that Peralta would disclose her trial expert witnesses by

March 13, 2012. Following this date, Peralta entered denials on two requests for admission that,

at the time of the collision, Peralta had a serum blood alcohol level of not less than 0.167 grams

per deciliter. Peralta refused to answer corresponding interrogatories that sought the reasons for

her denial, along with statements, documents, or expert opinions relied upon. Peralta claimed that

the requested information was work product and privileged.

        WSP filed a motion to compel discovery. Peralta responded that her denials were based

on a report written by a consulting expert who she did not intend to call as a witness at trial. She

argued that his opinion was protected as work product. This expert, later identified as Dr. William




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Brady, issued a written opinion in which he expressed doubt as to the reliability of the test

establishing Peralta’s serum blood alcohol level.1

       The trial court heard this motion on June 29, 2012. The report of proceedings of this

hearing is not contained in the record on appeal. During the hearing, counsel met outside the

courtroom and came to an agreement. The trial court entered an order granting WSP’s motion to

compel, agreed upon by the parties, requiring the plaintiff to “disclose the specific reasons for her

denials of the requests for admissions.” CP at 107. The trial court further stated that “[t]o the

extent Plaintiff challenges the validity of the blood test[,] she shall disclose each and every reason

she contends the test was invalid.” CP at 107. The order also precluded Peralta from calling any

expert she had not already disclosed.

       WSP moved to preclude Peralta “from introducing any evidence or questioning any witness

concerning any opinions, criticisms, or statements of Dr. Brady” based on the trial court’s

previously entered order precluding Peralta from calling any expert not already disclosed. CP at

119. The trial court granted WSP’s motion but invited Peralta to bring a motion to modify the trial

court’s previous order. Peralta did not seek modification.

III.   TRIAL

       A.      Testimony

       Tanner testified that when he hit Peralta, his speed was approximately 40 miles per hour,

5 miles per hour over the posted speed limit. He did not check his speedometer immediately prior

to the collision, but he based his estimate on his training and experience. He said he saw Peralta



1
  Dr. Brady’s report is not contained in the record on appeal. The only reference to the report is a
letter from Dr. Brady to Peralta’s trial counsel appended to Peralta’s motions in limine filed on
August 23, 2013.



                                                  5
45575-7-II


in front of his vehicle immediately before impact, he applied his brakes, and he swerved to try to

avoid hitting her.

       The parties contested whether Tanner’s headlights were on at the time of the collision.

Peralta and Tanner testified that the headlights were on. Two witnesses, Rick Riddell and Guy

Kirchgatter, testified that Tanner’s headlights were off at first and then turned on. Riddell

informed a law enforcement officer at the scene that Tanner’s headlights were turned off.

       Peralta tried to elicit testimony from Luann Pfleiger, Guy Kirchgatter’s mother, about what

Riddell and Kirchgatter told her they saw on the night of the accident regarding Tanner’s

headlights. WSP objected and argued the question called for hearsay. RP at 320. The trial court

sustained the objection. Peralta argued that under ER 801(d)(1), it was an admissible, prior

consistent statement in response to an implication of recent fabrication in WSP’s opening

statement. In opening statement WSP stated, “Now, unlike some of the witnesses whose testimony

you will hear in this case who came up with their story several years after the event.” 1 RP at 127.

The trial court maintained its ruling on the objection after hearing from both parties regarding the

claim of recent fabrication.

       Ryan Taylor investigated the collision. He testified that a few days after the collision, he

spoke to Peralta in the hospital, and she appeared conscious and alert during the interview. She

admitted that she had been drinking on the night of collision and that she wanted a designated

driver to drive her because she felt too impaired to drive. Peralta also told Taylor that she saw

headlights approaching her prior to the collision and she walked out into the roadway.




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45575-7-II


       During rebuttal, Peralta moved to publish a portion of WSP Sergeant Roy Rhine’s

deposition testimony to impeach Tanner’s testimony that he saw Peralta before impact. 2 Peralta

also offered a portion of WSP Detective David Ortner’s deposition testimony to impeach Taylor’s

testimony that Peralta was alert and coherent during an interview at the hospital after the collision.3

Neither Sergeant Rhine nor Detective Ortner testified at trial. WSP objected on the basis that

Peralta had not established that Sergeant Rhine and Detective Ortner were unavailable as CR

32(a)(3) requires. Peralta argued that CR 32(a)(3)’s unavailability requirements did not apply

because Sergeant Rhine and Detective Ortner were agents of WSP and therefore their deposition

testimonies were admissible as admissions by a party-opponent under ER 801(d)(2). The trial

court agreed with WSP and excluded the deposition testimony because Peralta did not demonstrate

the witnesses’ unavailability as CR 32(a)(3) requires.

       B.      Jury Instructions

       The trial court gave jury instruction 19 on the RCW 5.40.060 intoxication defense:

       It is a defense to an action for damages for personal injuries that the person injured
       was then under the influence of alcohol, that this condition was a proximate cause
       of the injury, and that the person injured was more than fifty percent at fault.

CP at 362 (Instr. 19).

       During argument on jury instructions, the trial court again commented on Peralta’s

admission that she was under the influence at the time of the collision:

       I believe as a matter of law based upon the response to the CR 36 request for
       admissions, that that issue has been conclusively established in this case. That the
       Plaintiff admitted being under the influence of intoxicating liquor at the time of the
       collision. That’s my ruling.

2
 Sergeant Rhine testified in his deposition that Tanner told him that he did not see Peralta before
impact.
3
 Detective Ortner testified in his deposition that he was present during the interview with Peralta
and she was “a little bit groggy, I guess, so to speak.” Supp. CP at 529.


                                                  7
45575-7-II



8A RP at 1723. Accordingly, the trial court gave jury instruction 20, that Peralta admitted to being

under the influence:

       To establish the defense that the person injured was under the influence, the
       defendant has the burden of proving each of the following propositions:

       First, that the person injured was under the influence of alcohol at the time of the
       occurrence causing the injury. Plaintiff admits this element.

       Second, that this condition was a proximate cause of the injury; and

       Third, that the person injured was more than fifty percent at fault.

       If you find from your consideration of all the evidence that each of these
       propositions has been proved, then this defense has been established.

CP at 363 (Instr. 20) (emphasis added). Peralta took exception to this instruction.

       C.      Verdict

       The jury returned the following special verdict form, in relevant part:

               We, the jury, answer the questions submitted by the court as follows:

       ....

       QUESTION 3:             Was the plaintiff negligent?

                         ANSWER: yes . . .

              If you answered “yes” to Question 3, answer Question 4. If you answered
       “no” to Question 3, skip to Question 7.

       QUESTION 4:           Was the plaintiff’s negligence a proximate cause of the
       injury or damage to the plaintiff?

                         ANSWER: yes . . .

              If you answered “yes” to Question 4, answer Question 5. If you answered
       “no” to Question 4, skip to Question 7.

       QUESTION 5:           Was the fact that plaintiff was under the influence of alcohol
       a proximate cause of her injury?



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45575-7-II


                       ANSWER: yes . . .

       QUESTION 6:             Assume that 100% represents the total combined fault that
       proximately caused the plaintiff’s injury. What percentage of this 100% is
       attributable to the plaintiff’s negligence and what percentage of this 100% is
       attributable to the negligence of the defendant? Your total must be equal to 100%.

                       ANSWER:

                       To Plaintiff Deborah Peralta:           58%

                       To Defendant Washington State Patrol:           42%

       QUESTION 7:             What is the total amount of plaintiff’s damages?

                       Economic Damages:                               $511,000

                       Non-economic Damages:                           $750,000

                       TOTAL:                                          $1,261,000

CP at 387-88.

IV.    JUDGMENT

       Peralta submitted a proposed judgment awarding her $529,620.00 in damages. Peralta

argued that the jury’s award of damages to her reflected its intent for her to recover damages.

Peralta also argued that the jury instructions given to the jury only instructed that Peralta’s damages

would be reduced by her contributory negligence and intoxication, not barred. She argued,

therefore, that under the law of the case, Peralta’s intoxication could only reduce her damage award

but not bar recovery. In support of her proposed judgment, Peralta submitted declarations from

individual jurors who stated the jury intended Peralta to recover damages.

       The trial court, over Peralta’s objection, entered the following judgment:

       Pursuant to RCW 5.40.060, the Complaint and Claims of the Plaintiff against
       Defendant State of Washington, Washington State Patrol shall be and the same are
       DISMISSED WITH PREJUDICE.

CP at 497. Peralta appeals.


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45575-7-II


                                           ANALYSIS

I.     INTOXICATION

       Peralta argues that the trial court erred when it ruled that her response to the request for

admission that she was “under the influence of intoxicating liquors” constituted an admission that

Peralta was under the influence for purposes of RCW 5.40.060(1). Peralta argues that the trial

court’s ruling removed a “significant factual issue” from the province of the jury. Br. of Appellant

at 57. We agree because WSP’s request for admission did not define the term “under the influence”

under the statutory definition.

       A.      Standard of Review

       When confronted with mixed questions of law and fact, we independently determine the

law and apply it to the facts. Miller v. City of Bainbridge Island, 111 Wn. App. 152, 161, 43 P.3d

1250 (2002). Here, the trial court first had to interpret the intoxication standard provided by RCW

5.40.060. Statutory interpretation is a question of law that we review de novo. Bostain v. Food

Express, Inc., 159 Wn.2d 700, 726, 153 P.3d 846 (2007). Then, the trial court had to determine

the meaning of Peralta’s admission in light of its interpretation of RCW 5.40.060. We review

questions of law and the application of the law to the facts de novo. Terry v. Emp’t Sec. Dep’t.,

82 Wn. App. 745, 748-49, 919 P.2d 111 (1996).

       B.      RCW 5.40.060 – Intoxication Defense

       As part of tort reform, the legislature enacted RCW 5.40.060. Hickly v. Bare, 135 Wn.

App. 676, 685, 145 P.3d 433 (2006). The statute sets forth the limited circumstances when a

defendant may use the plaintiff’s intoxication as a complete defense to an action for damages:

       Except as provided in subsection (2) of this section, it is a complete defense to an
       action for damages for personal injury or wrongful death that the person injured or
       killed was under the influence of intoxicating liquor or any drug at the time of the
       occurrence causing the injury or death and that such condition was a proximate


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45575-7-II


        cause of the injury or death and the trier of fact finds such person to have been more
        than fifty percent at fault. The standard for determining whether a person was
        under the influence of intoxicating liquor or drugs shall be the same standard
        established for criminal convictions under RCW 46.61.502, and evidence that a
        person was under the influence of intoxicating liquor or drugs under the standard
        established by RCW 46.61.502 shall be conclusive proof that such person was
        under the influence of intoxicating liquor or drugs.

RCW 5.40.060(1) (emphasis added).

        Under RCW 46.61.502(1), driving under the influence may be established by proving that

the driver’s blood alcohol level was at least 0.08 within two hours after driving, or by proving that

the driver was under the influence of alcohol, any drug, or a combination of alcohol and any drug.

State v. Charley, 136 Wn. App. 58, 63, 147 P.3d 634 (2006). To prove driving under the influence

of alcohol under the blood alcohol level prong, there must be compliance with proper blood

sampling procedures. RCW 46.61.506; Charley, 136 Wn. App. at 63. To prove the other prong,

evidence that “the ability to handle an automobile was lessened in an appreciable degree by the

consumption of intoxicants or drugs” must be proved. State v. Wilhelm, 78 Wn. App. 188, 193,

896 P.2d 105 (1995); see also State v. Hurd, 5 Wn.2d 308, 105 P.2d 59 (1940).

        C.      CR 36—Request for Admission

        CR 36 provides, in part, that “[a] party may serve upon any other party a written request

for the admission . . . of the truth of any matters . . . that relate to statements or opinions of fact or

of the application of law to fact, including the genuineness of any documents described in the

request.” CR 36(a). “The purpose of CR 36 admissions is to eliminate from controversy

undisputed factual matters, not legal conclusions.” Lakes v. von der Mehden, 117 Wn. App. 212,

219, 70 P.3d 154 (2003). CR 36(a) expressly authorizes requests for admission that relate to

application of law to fact, but a party is not required to admit legal conclusions under this rule.

Santos v. Dean, 96 Wn. App. 849, 861, 982 P.2d 632 (1999).



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45575-7-II


       The responding party may admit the request in full or in part, deny the request, set forth

reasons the party cannot admit or deny the request, or object to the request. CR 36(a). A party

may qualify her answer or deny only part of the matter for which the admission is requested, if

good faith requires. CR 36(a). Requests for admission are deemed conclusively established under

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

       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)).

       D.      Peralta’s Admission Did Not Satisfy RCW 5.40.060(1)

       “In interpreting a statute, the court should assume that the Legislature meant exactly what

it said.” Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993) (RCW 5.40.060

denied recovery to an intoxicated passenger injured by a defendant driver). Courts are obligated

to give the plain language of a statute its full effect. Geschwind, 121 Wn.2d at 841. The legislature

provided that the standard for determining whether a person was under the influence for purposes

of establishing the first element of the defense “shall be the same standard established for criminal

convictions under RCW 46.61.502.” RCW 5.40.060(1). Because the legislature provided a

definitional phrase, it must be given its full effect. Therefore, to bar recovery, it must be proven

that the plaintiff was under the influence under the standard established by RCW 46.61.502.

       Here, WSP’s request for admission was much broader than the language of RCW

5.40.060(1). It merely asked whether Peralta was under the influence of intoxicating liquors at the

time of the collision. CP at 146. It did not define “under the influence” as that phrase is used in

RCW 5.040.060 and RCW 46.61.502. Standing alone, the phrase “under the influence” is



                                                 12
45575-7-II


susceptible to different interpretations. In fact, the term “under the influence” is used in many

other statutes without reference to the RCW 46.61.502 standard.4

       In addition, lay opinion testimony on whether or not a person is “under the influence” may

be admitted by the trial court without regard to the standard of RCW 46.61.502. See State v. Brett,

126 Wn.2d 136, 161, 892 P.2d 29 (1995). We note that the standard for intoxication may be

different for operation of a vessel while under the influence of liquor or drugs than it is for

operation of a motor vehicle under the influence. See RCW 90.56.540; RCW 46.61.502. Because

WSP’s request for admission and Peralta’s subsequent response are not couched in relation to the

proper standard, the trial court erred when it ruled that Peralta’s admission conclusively established

that she was under the influence as a matter of law.

       WSP argues that any error was harmless because the record demonstrates her “significant

intoxication.” Br. of Resp’t at 28. Errors that affect the outcome of the case are prejudicial and

not harmless. Mut. of Enumclaw Ins. Co. v. Gregg Roofing, 178 Wn. App. 702, 727, 315 P.3d 1143

(2013). Generally, “[i]t is well established that errors in civil cases are rarely grounds for relief

without a showing of prejudice to the losing party.” Saleemi v. Doctor’s Assocs., Inc., 176 Wn.2d

368, 380, 292 P.3d 108 (2013).

       “[E]rror without prejudice is not grounds for reversal.” Thomas v. French, 99
       Wn.2d 95, 104, 659 P.2d 1097 (1983) (citing Ashley v. Lance, 80 Wn.2d 274, 282,
       493 P.2d 1242 (1972)). “Error will not be considered prejudicial unless it affects,
       or presumptively affects, the outcome of the trial.” Id. (citing James S. Black & Co.
       v. P&R Co., 12 Wn. App. 533, 537, 530 P.2d 722 (1975)).

Saleemi, 176 Wn.2d at 380.




4
 Pedestrians under the influence. RCW 46.61.266. Intoxicated bicyclists. RCW 46.61.790.
Operation of a vessel while under the influence. RCW 90.56.540.


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45575-7-II


       Here, the trial court’s error tainted the entire trial because Peralta did not have the

opportunity to present evidence rebutting the court’s instruction to the jury that she was under the

influence. Peralta had evidence through a witness, Christian Price, that she did not see Peralta

consume alcohol and that Peralta did not seem drunk. However, the trial court did not allow her

to present this evidence to the jury. Additionally, the trial court relieved WSP of the burden of

establishing one of the elements of its defense when it instructed the jury that Peralta admitted she

was under the influence of intoxicating liquor. The error necessarily affected the outcome of the

trial because Peralta did not have the opportunity to present evidence on a key factual issue.

Therefore, the error was not harmless.

       E.      Jury Instruction 20 Erroneous

       We review a trial court’s decision on whether to give a jury instruction for an abuse of

discretion. Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 131, 138 P.3d 1107 (2006). But where

a trial court’s decision to give an instruction is based on legal ruling, we review it de novo. Tuttle,

134 Wn. App. at 131. Here, the trial court based its decision to give jury instruction 20 based on

its erroneous interpretation that Peralta’s admission satisfied the first element of RCW 5.40.060(1).

Therefore, we conduct a de novo review.

       Based on our previous holding, the trial court erred by giving instruction 20 and the error

was not harmless.

II.    VERDICT AND JUDGMENT

       Peralta next argues that, notwithstanding any other error, the trial court erred when it

entered judgment for WSP, precluded Peralta from recovering damages, and dismissed her

complaint with prejudice. Peralta argues that we should reinstate the jury verdict. We disagree.




                                                  14
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        “We review the legal effect of a jury verdict de novo.” McRae v. Tahitian, LLC, 181 Wn.

App. 638, 644, 326 P.3d 821 (2014). “Once a jury renders a verdict, the trial court must declare

its legal effect and enter a judgment upon it where appropriate.” McRae, 181 Wn. App. at 644;

see CR 49, 58. A court may view a jury verdict in light of the trial evidence and jury instructions.

McRae, 181 Wn. App. at 645. “A court liberally construes a verdict so as to discern and implement

the jury’s intent, if consistent with the law.” McRae, 181 Wn. App. at 644.

        A court must attempt to harmonize special verdict answers that conflict with each other.

Estate of Dormaier v. Columbia Basin Anesthesia, P.L.L.C., 177 Wn. App. 828, 866, 313 P.3d 431

(2013). “[W]here the answers are reconcilable, the trial court must enter judgment accordingly,

and where the answers are irreconcilable, the trial court must order further deliberations or a new

trial.” Dormaier, 177 Wn. App. at 866. A court must presume that the jury properly followed the

instructions it received. Dormaier, 177 Wn. App. at 867. And “a court must not ‘substitute its

judgment for that which is within the province of the jury.’” Dormaier, 177 Wn. App. at 867

(quoting Blue Chelan, Inc. v. Dep’t of Labor & Indus., 101 Wn.2d 512, 515, 681 P.2d 233 (1984)).

        Here, the trial court instructed the jury on the law, but it did not instruct the jury on the

effect of the law. In other words, the court told the jury to apportion fault if it found the plaintiff’s

negligence was a proximate cause of her injury. It did not tell the jury to not award damages to

Peralta if it found her more than 50 percent negligent. The legal effect of the jury’s finding is one

for the court to determine, so there is no error. However, if the trial court had instructed the jury

to not answer any more questions if it found Peralta to be more than 50 percent negligent, there

would have been no confusion.




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          Because the trial court’s previously discussed errors tainted the trial, we disagree with

Peralta that entry of judgment is the correct remedy. Instead, we adhere to our holding that reversal

and remand is appropriate.

III.      EVIDENTIARY ISSUES5

          A.      Standard of Review

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

Ins. Co., 178 Wn. App. at 728. A trial court abuses its discretion if its decision is manifestly

unreasonable, exercised on untenable grounds, or based on untenable reasons. Mut. of Enumclaw

Ins. Co., 178 Wn. App. at 728. “When a trial court makes an erroneous evidentiary ruling, the

question on appeal becomes ‘whether the error was prejudicial, for error without prejudice is not

grounds for reversal.’” Mut. of Enumclaw Ins. Co., 178 Wn. App. at 728-29 (quoting Brown v.

Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983)). If an error

affects the outcome of the case, it is prejudicial and not harmless. Mut. of Enumclaw Ins. Co., 178

Wn. App. at 729.

          B.      Sergeant Rhine and Detective Ortner’s Deposition Testimony

          Peralta argues that the because both Sergeant Rhine and Detective Ortner are agents of

WSP and therefore party-opponents, the trial court erred by excluding their deposition testimony

that Tanner said he did not see Peralta prior to impact. WSP argues that the trial court properly

excluded this evidence because it was not disclosed until rebuttal and Sergeant Rhine and

Detective Ortner were not unavailable.




5
    Because these issues are likely to recur if the case is retried, we address them.


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45575-7-II


       CR 32 governs the use of depositions in court proceedings. CR 32(a)(2) provides that

“[t]he deposition of a party or of anyone who at the time of taking the deposition was an officer,

director, or managing agent, or a person designated under rule [CR] 30(b)(6) or 31(a) to testify on

behalf of a public or private corporation, partnership or association or governmental agency which

is a party may be used by an adverse party for any purpose.” Under ER 801(d)(2), statements by

a party-opponent are not hearsay and admissible as an admission if the statement is offered against

a party and is “the party’s own statement, in either an individual or a representative capacity,” “a

statement by a person authorized by the party to make a statement concerning the subject,” or “a

statement by the party’s agent or servant acting within the scope of the authority to make the

statement for the party.” ER 801(d)(2)(i), (iii), (iv). A party’s agent must have speaking authority.

Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 404, 725 P.2d 1008 (1986).

       WSP did not designate Sergeant Rhine to testify on its behalf. The record is insufficient to

determine whether WSP designated Detective Ortner to testify on its behalf. But neither of these

deficiencies is dispositive because Peralta argues both troopers were WSP’s agents because they

had the authority to investigate collisions, make written findings, and file reports. Peralta argues

that the troopers’ statements were made in their representative capacity on WSP’s behalf. The

trial court was required to make these preliminary factual determinations.6 It failed to do so.




6
  ER 104(a) provides: “Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall be determined by the
court.”



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       C.      Eyewitness Hearsay Statements

       Peralta next argues that the trial court erred by excluding as hearsay certain eyewitness

statements about Tanner’s headlights. She argues that the statements were admissible prior

consistent statements because WSP alleged recent fabrication.

       A prior consistent statement by a witness is not hearsay if it is consistent with the

declarant’s testimony and is used to rebut an allegation of recent fabrication. ER 801(d)(1)(ii).

When the conditions of ER 801(d)(1)(ii) are present and the witness’s prior consistent statements

were made before the date of facts from which the motive to falsify can be inferred, the prior

consistent statement is relevant and may be admitted. State v. Harper, 35 Wn. App. 855, 857, 670

P.2d 296 (1983). Thus, there must be an express or implied charge of recent fabrication or

improper influence or motive. See Harper, 35 Wn. App. at 858. In other words, a witness’s prior

consistent statements cannot be introduced merely to corroborate or bolster her testimony. Harper,

35 Wn. App. at 857. While “mere cross examination [or contradiction] of the witness cannot alone

justify admission of prior consistent statements,” a vigorous cross examination implying bias or

fabrication may trigger ER 801(d)(1)(ii). State v. Dictado, 102 Wn.2d 277, 290, 687 P.2d 172

(1984); see 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW               AND   PRACTICE §

801.25, at 374 (5th ed. 2007).

       Here, WSP’s opening statement implied that witnesses recently fabricated their testimony

when WSP stated, “Now, unlike some of the witnesses whose testimony you will hear in this case

who came up with their story several years after the event.” 1 RP at 127. Because the State made

this statement, the trial court erred in excluding the testimony.




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IV.    COMPELLING PERALTA TO DISCLOSE CONSULTING EXPERT

       Peralta further argues that the trial court erred by compelling her to disclose her consulting

expert and his report. We agree because Dr. Brady was a consulting expert and not a testifying

witness and the work product doctrine precluded the discovery of his identity and his report.

       The discovery of the facts known and opinions held by nontestifying experts is limited.

CR 26(b)(5)(B). “The opinions and even identities of these ‘consulting experts’ are protected

because they are considered part of the party’s team and their opinions are treated as work

product.” Stevens v. Gordon, 118 Wn. App. 43, 50, 74 P.3d 653 (2003) (quoting 15A KARL B.

TEGLAND & DOUGLAS J. ENDE, WASHINGTON PRACTICE: WASHINGTON HANDBOOK                        ON   CIVIL

PROCEDURE § 39.4, at 398 (2015)). “Discovery of consulting expert opinions is restricted to that

allowed by CR 35, relating to physical and mental examinations, and to that authorized by court

order upon a showing of exceptional circumstances.” Stevens, 118 Wn. App. at 50.

       Here, the trial court did not find exceptional circumstances when it forced Peralta to

disclose Dr. Brady. Peralta claimed she did not have to state her reasons when she denied WSP’s

request for admission that she had a 0.167 serum blood alcohol level. She refused to answer

corresponding interrogatories seeking the basis of her denial, including reasons for her denial, and

statements, documents, or expert opinions relied upon. She objected because the requested

information was work product and privileged. WSP’s motion to compel neither argued that CR

35 applied or showed exceptional circumstances for disclosure.7 The trial court’s order granting

WSP’s motion to compel does not include a finding of exceptional circumstances. Under these




7
  The report of proceedings on this motion to compel is not part of the appellate record. However,
the written motion is contained in the Clerk’s Papers.



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circumstances, the trial court erred by granting the motion to compel and by ordering Peralta to

disclose the identity of her consulting expert and his report.8

       We reverse the trial court and remand for further proceedings.




                                                              Melnick, J.

We concur:




       Worswick, J.




       Johanson, C.J.




8
  Peralta also argues that the trial court erred by precluding her from calling an expert witness on
alcohol. Because this sanction occurred during the motion to compel and because no transcript of
the proceedings has been transmitted to us, we are unable to decide whether or not the trial court
complied with Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 136 (1997), before
imposing this extraordinary sanction.


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