                                                       2015 Ml -8 a:-; S: 33



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BEHZAD MOHAMMAD, an individual,
                                                 DIVISION ONE
                      Plaintiff,
                                                 No. 71008-7-1
MOGHADAM M. MOVAHEDI, an
individual,
                                                 UNPUBLISHED OPINION
                      Appellant,



RAYMOND THOMAS, an individual,
and JANE DOE THOMAS, an
individual and the marital community
comprised thereof,

                      Respondents.               FILED: June 8, 2015


       Dwyer, J. - Moghadam Movahedi appeals the denial of his motion for a
new trial in his personal injury suit, claiming that a new trial is necessary because

he was prejudiced by a discovery violation and because the jury verdict was
contrary to the evidence. Because he fails to establish any abuse of discretion in
the trial court's rulings, we affirm.

                                          I


        Moghadam Movahedi sued Raymond Thomas for damages based on
injuries sustained in a motor vehicle collision. Thomas admitted liability for the
collision and stipulated to certain medical expenses, but contested the nature
and extent of Movahedi's claimed injuries. Thomas retained Dr. Mary Reif, a
No. 71008-7-1/2



licensed neurologist, to perform a medical examination of Movahedi, review

records related to the collision and Movahedi's medical care, prepare a written

report, and testify as an expert witness at trial. Prior to trial, Thomas provided

Movahedi with a copy of Dr. Reif's report, which included the following

diagnoses:

       1.     History of cervical, thoracic, and lumbar straining syndrome
       due to motor vehicle accident of June 29, 2011, with resolution, and
       bilateral wrist strains, all objectively resolved. Cervicogenic
       headache at onset but no additional comments made between July
       6, 2011 and Dec 19, 2011 in the medical records

       2.     Epilepsy, partial complex, with some secondary
       generalization. This is reported in November or December 2011
       and has no relationship to the motor vehicle accident. ... He has
       an abnormal brain MRI and electroencephalogram. The
       abnormalities seen on MRI were not acute at the time of the first
       MRI brain and are not of a pattern that would come from head
       trauma, particularly that type described in the accident in
       question       [T]he findings that came on his brain MRI are not
       those which would develop as a result of head trauma, and
       therefore, the findings ofthis MRI and his epilepsy are completely
       coincidental and unrelated to the whiplash injury.

       3.     Tenderness to light touch in the right suboccipital region.
       This is unassociated with any objective pathology, and I cannot
       relate it, on a more probable than not basis, to his MVA of 2011.
       4.      I cannot relate his current headaches to his MVA. . . .

       At trial, Dr. Chi Meng Gan, Movahedi's treating physician, testified that he
first examined Movahedi two days after the collision. Dr. Gan diagnosed neck
sprain, lower back sprain, and wrist sprains. Dr. Gan acknowledged that
Movahedi complained of "headache and dizziness," but concluded that, "most
likely," "the neck sprain . . . resulted in his headaches." Over the next few weeks,
No. 71008-7-1/3



Dr. Gan treated Movahedi with acupuncture and massage, which "helped him

heal his neck and lower back."

       However, over five months after the collision, Movahedi complained to Dr.

Gan of a "sudden reoccurrence of headaches," "photophobia," and "dizziness,"

as well as "periodic short episodes of loss of consciousness." Dr. Gan referred

him to a neurologist for a formal diagnosis and treatment of "post-concussion"

symptoms. Dr. Gan opined that Movahedi's headaches resulted from a

"traumatic brain injury" that Movahedi suffered during the collision.

       Prior to Dr. Reif s testimony, Movahedi requested that the court exclude

any testimony expressing an opinion as to whether he suffered a traumatic brain

injury in the collision because Dr. Reif had included no such opinion in her report.

The court ruled that Thomas "can ask her whether she has any other diagnoses"

than those in her report, but that Thomas was not "to go into the background" or

her reasons for making or ruling out any other diagnosis. The court continued,

"You can certainly ask her, .. .To make it clear, you're not diagnosing him as

having traumatic brain injury.'"

       During Dr. Reif's testimony, Thomas asked, "Based on your expertise as a
neurologist in your examination and review ofthe records, you're not diagnosing
him with having had a traumatic brain injury. Correct?" The court overruled
Movahedi's objection and Dr. Reif answered, "No, I'm not. I'm not diagnosing him

with a TBI."

       In addition to the stipulated amount of $6,970 for medical expenses, the

jury awarded Movahedi $650 in "past and future noneconomic damages."
No. 71008-7-1/4



       Movahedi filed a motion for a new trial, claiming that the trial court erred

by failing to exclude Dr. Reif's testimony regarding traumatic brain injury. He

also claimed that the jury verdict was contrary to the evidence. The trial court

denied the motion.

       Movahedi appeals.

                                          II


       We review a trial court's ruling on sanctions for discovery violations and a

motion for a new trial for abuse of discretion. Rivers v. Wash. State Conference

of Mason Contractors. 145 Wn.2d 674, 684, 41 P.3d 1175 (2002) (trial court has

broad discretion in choice of sanctions for discovery order violation); Brundridqe

v. Fluor Fed. Servs.. Inc., 164 Wn.2d 432, 454, 191 P.3d 879 (2008) (trial court

has discretion to grant new trial if damage award is contrary to evidence). Atrial
court abuses its discretion only if its decision is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v.
Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       Movahedi claims Thomas violated his discovery obligations by failing to

promptly and fully respond to interrogatories regarding expert witnesses and then
introducing Dr. Reif's previously undisclosed opinion at trial. He also claims the
trial court erred by allowing Dr. Reif to testify to a new undisclosed opinion.
       We disagree with Movahedi's characterization ofthe record. Thomas
disclosed Dr. Reif's report prior to trial. The report clearly demonstrates that Dr.
Reif believed that all symptoms Movahedi experienced as a result of the collision
were resolved and that all symptoms described in and after November and
No. 71008-7-1/5



December 2011 "are completely coincidental and unrelated to the whiplash

injury," "not those which would develop as a result of head trauma," and not

related to the collision. Based on these clear statements in the properly

disclosed report, there was nothing new or surprising in Dr. Reif's statement that

she did not diagnose a traumatic brain injury. Thus, Movahedi fails to identify

any abuse of discretion in the trial court's management of discovery or admission

of evidence at trial. Nothing in the authority upon which Movahedi relies requires

a different result. CT, Maqana v. Hyundai Motor Am., 167 Wn.2d 570, 576, 220

P.3d 191 (2009) (affirming trial court's decision to strike pleadings and enter $8

million default judgment against defendant in personal injury action based on

findings of willful and deliberate discovery violations resulting in substantial

prejudice to plaintiff's preparation for trial such that lesser sanctions would not

suffice); Port of Seattle v. Equitable Capital Grp., Inc., 127 Wn.2d 202, 209, 898

P.2d 275 (1995) (affirming trial court's decision to exclude testimony of expert

who valued property at $4.3 million based on 88 comparables before discovery

deadline and then changed valuation to between $65 million and $75 million

based on 237 comparables just seven days before trial).

       Next, Movahedi argues he is entitled to a new trial because the jury's

award of "only $650" in noneconomic damages is contrary to Dr. Reifs

uncontroverted testimony that he "sustained injuries to his neck, mid-back, low

back, and wrists as a proximate result of the subject accident." Br. of Appellant

at 15. But Movahedi does not identify any evidence suggesting a different dollar

amount was required to compensate his past and future noneconomic damages
No. 71008-7-1/6



based on these injuries. And, again, the authority upon which he relies does not

support his claim. Cf, Palmer v. Jensen, 132 Wn.2d 193, 201-03, 937 P.2d 597

(1997) (trial court abused discretion in denying new trial where jury's verdict

awarding no damages for pain and suffering was contrary to evidence that

plaintiff experienced pain and suffering for over two years after accident);

Krivanekv. Fibreboard Corp., 72 Wn. App. 632, 637, 865 P.2d 527 (1993) (trial

court abused discretion in denying new trial where jury's award of $30,000 on

wrongful death claim was not within the range of uncontroverted evidence of
pension and wage losses ofapproximately $251,939 to $305,732).
       Moreover, because Movahedi has not provided a complete record of the

trial, despite his burden to provide this court with a record sufficient to review the
issues raised on appeal, we cannot say that the award is outside the range ofthe
evidence. RAP 9.2; Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d
368 (1988). Movahedi fails to demonstrate any abuse of discretion in the trial
court's denial of his motion for a new trial.

       Affirmed.                                 ..


                                                j^.



We concur:

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