       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


AIMEIW. CRETTOL and MARTIN                                                                         -He:
CRETTOL, individually and the marital                     No. 68943-6-                    o        m
community comprised thereof,                                                              o
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                        Appellants,                                                                3> TJ pi
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FILBERTO GONZALEZ-REYES and
JANE DOE GONZALEZ-REYES,
individually and the marital community
comprised thereof,                                       UNPUBLISHED OPINION

                        Respondents.                     FILED: October 28, 2013

        Spearman, A.C.J. — Aimei Crettol sued Filberto Gonzalez-Reyes after the

two were involved in a car accident.1 Crettol seeks reversal ofthe jury's verdict
entered in favor of Gonzalez-Reyes. She assigns error to the trial court's rulings

(1) giving an emergency instruction to the jury, (2) permitting Gonzalez-Reyes to

testify that he had leukemia, and (3) admitting evidence that Crettol failed to

improve after the accident because of her "somatic focus" and "pain behaviors."

We agree with Crettol that the trial court committed prejudicial error in giving the

emergency instruction. We also conclude the trial court erred in admitting


        1The spouses of Crettol and Gonzalez-Reyes are also named parties, but we will refer to
Crettol and Gonzalez-Reyes as if they were the sole parties in this appeal.
No. 68943-6-1/2



evidence of Crettol's somatic focus but did not err in permitting Gonzalez-Reyes

to testify that he had leukemia. We reverse and remand for a new trial.

                                     FACTS

       On February 25, 2008, Michael Steiner, Aimei Crettol, and Filberto

Gonzalez-Reyes were traveling in the left lane of the two westbound lanes of

212th Street in Kent, Washington. Steiner was the lead vehicle, with Crettol

behind him, an unidentified car behind Crettol, and Gonzalez-Reyes behind the

unidentified car.

       Steiner slowed down when he saw a truck in front of him drive over a

piece of broken concrete from the roadway meridian. He ran over the piece of

concrete and it became stuck under his car, after which he travelled 30 to 40 feet

before coming to a stop. He then heard the sounds of an accident behind him.

Steiner got out of his car and walked to the accident scene. There were multiple

cars behind Crettol's van and Gonzalez-Reyes was the driver of the first car

behind it. Steiner observed that Gonzalez-Reyes had run into the back of

Crettol's van.

       Crettol was injured in the accident and she filed suit against Gonzalez-

Reyes. Crettol's treating physician, Marvin Brooke, M.D., and Gonzalez-Reyes's

medical expert, Allen Jackson, M.D., testified that Crettol suffered damages that

were caused by the accident, though they disagreed regarding the extent of her

damages.
No. 68943-6-1/3



        The jury found that Gonzalez-Reyes was not negligent, and the trial court

entered judgment on the verdict. Crettol appeals, assigning error to three of the

trial court's rulings.2
                                         DISCUSSION

                                    Emergency Instruction

        Over Crettol's objection,3 the trial court gave an emergency instruction
(Instruction No. 15) that stated,

        A person who is suddenly confronted by an emergency through
        no negligence of his or her own and who is compelled to decide
        instantly how to avoid injury and who makes such a choice as a
        reasonably careful person placed in such a position might make,
        is not negligent even though it is not the wisest choice.

Clerk's Papers (CP) at 90.

        Crettol claims the trial court erred in giving this instruction given the

evidence in this case.4 A trial court's decision to give an emergency instruction is


        2Crettol also claims the trial court erred in denying her motion for a new trial. She
contends all of the evidence showed that Gonzalez-Reyes was at fault. Granting a motion for a
new trial is appropriate if, viewing the evidence in the light most favorable to the nonmoving party,
we can say as a matter of lawthat there is no substantial evidence or reasonable inferences to
sustain the verdict for the nonmoving party. Kohfeld v. United Pac. Ins. Co., 85 Wn. App. 34, 41,
931 P.2d 911 (1997). We cannot review this claim. Only portions of the verbatim report of trial
proceedings are in the record, and it is impossible to determine whether all the evidence showed
Gonzalez-Reyes was at fault. The appellant has the burden of complying with the rules and
presenting a record adequate for review on appeal. In re Marriage of Hauqh, 58 Wn. App. 1, 6,
790 P.2d 1266 (1990). Failure to provide an adequate record precludes appellate review.
Olmstead v. Mulder. 72 Wn. App. 169, 182-83, 863 P.2d 1355 (1993).

        3Crettol also objected to Instruction No. 12, butthat instruction does not state the
emergency rule.

        4 Crettol does not contend that Instruction No. 15, which is copied from 6 Washington
Practice: Washington Pattern Jury Instructions: Civil12.02 (WPI) 12.02 (6th ed. 2012)
incorrectly states the law.
No. 68943-6-1/4



reviewed for abuse of discretion. Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d

286 (2009). In giving an emergency instruction, the court must decide whether

the record contains the kind of facts to which the emergency doctrine applies, id.

       The emergency rule "is applicable only after a person has been placed in

a position of peril and there is a choice between courses of action after the peril

has arisen." Zook v. Baier, 9 Wn. App. 708, 713, 514 P.2d 923 (1973) (citations

omitted). "The doctrine excuses an unfortunate human choice of action that

would be subject to criticism as negligent were it not that the party was suddenly

faced with a situation which gave him no time to reflect upon which choice was

the best." jd. at 714. An emergency instruction is not appropriate when there are

no alternative courses of action available, when there is only time for a single

instinctive reaction, jd.; see also Brown v. Spokane County Fire Protection Dist.

No. 1,100 Wn.2d 188, 668 P.2d 571 (1983) (emergency instruction inapplicable

where evidence showed driver decided to swerve and deliver glancing blow

rather than hitting the fire truck squarely; there were no alternative courses of

action other than to strike the fire truck). An emergency instruction is also not

appropriate if the emergency is brought about by the negligence of the party

seeking the instruction. Zook, 9 Wn. App. at 714. An emergency instruction is

required where there is conflicting evidence on the applicability of the doctrine.

Bell v. Wheeler, 14 Wn. App. 4, 6, 538 P.2d 857 (1975).
No. 68943-6-1/5



       Gonzalez-Reyes contends the trial court correctly gave the emergency

instruction because the evidence demonstrated that he could have swerved to

the right, like the red car in front of him, but instead chose to try to stop within the

lane. However, he points to no evidence in the record to show that at the time of

the accident he had such a choice. At trial, Gonzalez-Reyes testified that there

was a red car in front of him and behind Crettol that moved into the right lane. He

testified that after the red car moved to the right, he saw Crettol's car, which was

stopped, and he tried to stop but could not stop quickly enough so he ran into

her. He did not testify that there were alternative courses of action available to

him or that he made a split-second decision to take one course instead of

another. Nor does Gonzalez-Reyes point to any other evidence to support such a

claim. The emergency instruction was improperly given on these facts.

       A jury instruction that contains an erroneous statement of the applicable

law is reversible error where it prejudices a party. Cox v. Spanqler, 141 Wn.2d

431, 442, 5 P.3d 1265 (2000). An error is prejudicial if it affects the outcome of

the trial. State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977). Given the

narrow facts on which liability turned, we conclude the emergency instruction was

prejudicial. We reverse and remand on this basis but will also address the

evidentiary rulings for the trial court's benefit on remand.
No. 68943-6-1/6



                             Gonzalez-Reyes's Testimony

       Gonzalez-Reyes testified at trial. During his direction examination, he

testified that he had leukemia, as follows:

       BY MS. CANIFAX:

       Q. Filberto, it's obvious you walk with a limp now. Can you tell us
       what's going on with your health right now?
       MR. MACDONALD: Objection, relevance.
       THE COURT: Overruled.
       A. It was about the treatment I had for leukemia.
       BY MS. CANIFAX:
       Q. For leukemia?
       A. Yes.
       Q. All right. And at the time of this accident in 2008, were you able
       to drive?
       A. Yes.
       Q. Okay. So the — your limping and your leukemia didn't come
       from this accident?
       A. No.

Verbatim Report of Proceedings (VRP) (4/23/12) at 9-10.

       Crettol contends the trial court abused its discretion in permitting

Gonzalez-Reyes to testify about his leukemia because such testimony was

irrelevant and unfairly prejudicial. The trial court's decision to admit or exclude

evidence and its balancing of probative value against prejudicial effect are

reviewed for manifest abuse of discretion. Deqroot v. Berkley Const., Inc., 83

Wn. App. 125, 128, 920 P.2d 619 (1996).

       Evidence is admissible if it is relevant. ER 402. Evidence is relevant if it

has "any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be
No. 68943-6-1/7



without the evidence." ER 401. Relevant evidence may be excluded, however, if

its probative value is substantially outweighed by the danger of unfair prejudice.

ER 403. Evidence may be unfairly prejudicial if it is "dragged in for the sake of its

prejudicial effect or is likely to trigger an emotional response rather than a

rational decision among the jurors." Hayes v. Wieber Enterprises, Inc., 105 Wn.

App. 611, 618, 20 P.3d 496 (2001) (internal quotation marks and citation

omitted). "The burden of showing prejudice is on the party seeking to exclude the

evidence." |d (quoting Carson v. Fine, 123 Wn.2d 206, 225, 8667 P.2d 610

(1994)).

       We conclude the trial court did not abuse its discretion in permitting the

testimony. The issue at trial was whether Gonzalez-Reyes was negligent. As

Gonzalez-Reyes contends, the explanation of his limp was relevant because it

could have disabused the jury of speculation as to whether he was limping at the

time of the accident and should not have been driving. Evidence that a person

should not be driving due to a health condition tends to show that he was driving

negligently. Moreover, to the extent the brief reference to Gonzalez-Reyes's

leukemia was irrelevant, we are not persuaded that it was unfairly prejudicial.

                       Evidence of Crettol's "Somatic Focus"

       Before offering the testimony of her treating physician, Brooke, and her

treatment records from Capen Industrial Rehabilitation Services, Crettol filed a

motion to exclude (1) the occupational therapists' references to Crettol's "somatic
No. 68943-6-1/8



focus" and "pain behaviors" in the Capen records5 and (2) the portions of
Brooke's perpetuation deposition when he is asked by Gonzalez-Reyes's

counsel about somaticfocus and pain behaviors.6 The trial court denied the
motion. The objected-to portions of the Capen records and Brooke's perpetuation

deposition were published to the jury.

        Crettol contends the Capen therapists' statements regarding somatic

focus and pain behaviors were inadmissible because they were hearsay,

irrelevant, prejudicial, lacked foundation, and violated Mothershead v. Adams, 32

Wn. App. 325, 647 P.2d 525 (1982). Gonzalez-Reyes contends the Capen

records were medical records admissible as an exception to the hearsay rule


         5This evidence appears in a Capen "Work Conditioning Physical Therapy Discharge"
record and a "Work Conditioning Discharge Report Occupational Therapy" record, both dated
April 30, 2009. The former states that Crettol completed 22 visits and "made good progress
overall, however has been limited by her own somatic focus and overall fear to progress." CP at
546. The latter states, in the "Assessment" section, "The client demonstrates significant somatic
focus and self limiting pain behaviors. These barriers limited the client's treatment gains Itis
likely the client could make further treatmentgains, however, outcomes may be guarded due to
client's significant somatic focus and perception of disability." CP at 548.

        6Brooke was asked by Gonzalez-Reyes's counsel whether he was familiar with the
phrase "somatic focus." He stated, "[Ljiterally, it means focusing on the somatic, which is an
adjective meaning the body. So it means focusing on the body." Counsel testified that he was
familiar with the term "pain behaviors," describing it as "behaviors that are in some way
connected with pain but aren't necessarily connected with any other finding." When counsel
asked whether it would be helpful for him, as a treating physician, to know whether an ancillary
provider believed therewas somatic focus or pain behaviors in his patient, he stated that it would
because he could correlate such belief with his own impression and "look for other supporting or
conflicting information and otherfactors that mayor may not explain what was observed."
Counsel asked whether pain behaviors and somatization were signs of poor prognosis. Brooke
answered that in general, they were. Counsel then asked, "Meaning that it's not likely that any
treatment is going to help the person recover because the focus isn't necessarily physiological in
terms of muscle damage, correct?" He responded that "used as simple terms like that out of
context, they aren't helpful," butthat in context and with other information theywould be
important. Finally, when counsel asked whether he believed Crettol had somatization risks or pain
behaviors, he stated, "Oh, no. I felt that there was obvious anxiety and other issues that needed
to be evaluated and treated in conjunction with her other treatment." CP at 231-35.



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No. 68943-6-1/9



under RCW 5.45.020. Again, the admission or exclusion of evidence is reviewed

for abuse of discretion. Deqroot, 83 Wn. App. at 128.

       Hearsay is generally inadmissible unless there is an applicable exception.

ER 802. "'Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." ER 801(c). Under the "business records" exception to the

hearsay rule,

       A record of an act, condition or event, shall in so far as relevant,
       be competent evidence if the custodian or other qualified
       witness testifies to its identity and the mode of its preparation,
       and if it was made in the regular course of business, at or near
       the time of the act, condition or event, and if, in the opinion of
       the court, the sources of information, method and time of
       preparation were such as to justify its admission.

RCW 5.45.020. Generally, however, an expert opinion cannot be admitted as

part of a business record. State v. Wicker, 66 Wn. App. 409, 412-13, 832 P.2d

127 (1992). "[T]he business records exception does not, nor should it, allow for

the admission of expert opinions for which the opportunity to cross-examine

would be of value—like psychiatric diagnoses." In re Welfare of J.M., 130 Wn.

App. 912, 924, 125 P.3d 245 (2005).

       Gonzalez-Reyes argues the therapists' statements were not admitted for

diagnostic purposes but instead as evidence of the therapists' observations of

Crettol. He contends that this evidence supported his arguments that Crettol's

injuries could have been resolved but for her self-limiting participation in
No. 68943-6-1/10



occupational therapy.7 Gonzalez-Reyes is correct that, had the evidence been
limited to the therapists' observations, it would have been admissible as a "record

of an act, condition or event" under RCW 5.45.020, but that is not what occurred

below. Instead, the manner in which the evidence was presented to the jury

suggested that somatic focus and pain behaviors were diagnosable conditions8
and that the Capen therapists had in fact made that diagnosis as to Crettol.9 And
further, the Capen records suggested that the diagnosed conditions prevented

her from progressing in occupational therapy. As such, the evidence was not

admissible as a business record.

        The statements in the Capen records also did not meet ER 702, which

provides that "[i]f scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise." Here, there

was no evidence as to the Capen therapists' expertise to show that they were

qualified to offer an opinion about somatic focus or pain behaviors, or evidence

as to the therapists' reasoning in coming to a determination about somatic focus



        7The trial court ruled that the Capen therapists' observations were not an opinion or
diagnosis but instead related to a behavior, description, or "term." VRP (4/25/12) at 5-7.

        8During Brooke's perpetuation deposition, Gonzalez-Reyes's counsel asked him if he
had "ever diagnosed anyone with pain behavior." CP at 233.

        9The Capen records stated that Crettol demonstrated "significant somatic focus and self
limiting pain behaviors" and that her progress was limited by her "somatic focus."



                                                 10
No. 68943-6-1/11



or pain behaviors. The trial court abused its discretion in admitting the evidence.

Accordingly, the evidence regarding Crettol's somatic focus in the Capen records

and Brooke's testimony was inadmissible.

       Reversed and remanded.




WE CONCUR:
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