                                                                               FILED 

                                                                             NOV. 4,2014 

                                                                    In the Office of the Clerk of Court 

                                                                   WA tate Court of Appeals, Oivi ;ion llJ 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


SHELLY M. BALSER, individually, and            )
JOHN BALSER, individually, and their           )             No. 31567-3-III
Marital community,                             )
                                               )
                      Respondents,             )
                                               )
       v.                                      )             UNPUBLISHED OPINION
                                               )
PROVIDENCE HEALTH & SERVICES,                  )
a Washington Corporation d/b/a                 )
MOUNT CARMEL HOSPITAL                          )
                                               )
                      Appellant.               )

       KORSMO, J. -    Providence Health appeals the trial court's decision to grant a new

trial due to a failure of discovery concerning experiments undertaken by one of its experts

that were related to the jury during the expert' s testimony. Given the great deference

owed a trial judge' s discretion in this arena, we affirm.

                                           FACTS

       Respondent Shelley Balser and her husband (collectively, Balsers) sued Providence

Health and Services over injuries suffered after physical therapy treatment at Mount Carmel

Hospital in Colville. Following a change of venue, the matter ultimately proceeded to ajury

trial in Spokane County Superior Court.
No. 31567-3-III
Balser v. Providence Health Servs.


       The case revolved around a claim by the Balsers that Shelley Balser had been

injured during physical therapy for "tennis elbow" at Mount Carmel. Physical therapist

Thomas Kaluzny provided electrical muscle stimulation (EMS) treatment using the

"Russian electrical stimulation" method. EMS involves lise of electricity to simulate

muscle contractions. The Russian method used by Mr. Kaluzny places one electrode in

the middle of a muscle and one at the top of the muscle tendon. An electrical current was

then allowed to flow from one electrode to the other for alternating periods of ten seconds.

      The April 19, 2005, treatment session involved Mr. Kaluzny placing a pair of

electrodes on Ms. Balser's biceps and a pair on her trapezius. When properly applied, this

combination should cause the shoulder to lift or shrug. Mr. Kaluzny testified that he

placed one of the trapezius electrodes on the midsection of the upper trapezius and the

other at the top of the tendon of the deltoid muscle. His standard practice was to make

sure the EMS was causing the muscle to contract and the patient was comfortable, and

then he would leave the room during the duration of the treatment, typically 20 or 30

minutes.

      About five or ten minutes after he turned on the Dynatron EMS machine, observed

it working appropriately, and left the room, Ms. Balser experienced dizziness and her

heart started pounding. She got up and looked for help. Mr. Kaluzny returned and

discovered that Ms. Balser's pulse rate was 152 beats per minute and she had high blood .

pressure. He told her husband to take her to the hospital, where they gave her oxygen and

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No. 31567-3-111
Balser v. Providence Health Servs.


diagnosed her with tachycardia. Ms. Balser also complained of a dry mouth and tight

neck. After conferring with Mr. Kaluzny, the emergency room doctor concluded that the

symptoms may have been caused by EMS stimulation of the vagus nerve coming from the

brain. Ms. Balser's heart rate and blood pressure eventually returned to normal and she

was discharged.

       Over the following months, Ms. Balser continued to have a dry mouth, anxiety, and

periods when she felt she could not breathe; she occasionally reported heart palpitations ..

Her symptoms eventually improved somewhat with medication, but she remained anxious

about recurrences. In July 2005, a fellow physical therapist brought Ms. Balser a Dynatron

manual that warned against placing one of its electrodes near the stellate ganglion, a cluster

of nerves in the hollow above the clavicle next to the side of the neck. Ms. Balser did some

internet research and decided that her symptoms could be explained by injury to the stellate

ganglion on the right side of her neck. Contrary to Mr. Kaluzny's memory, she contended

that he had placed an electrode at least partially over the hollow above the clavicle, rather

than over the deltoid. By stimulating that hollow area, she contended, the EMS damaged

nerves in the stellate ganglion that serve her salivary glands and heart.

       The Balsers deposed physical therapist James Strandy, an expert for Providence

Health. At one point in the deposition, counsel for Providence Health asked Mr. Strandy,

"In addition to the records, literature and your experience, have you also performed any

kind of work or experimentation relative to Russian electrical stimulation?" He

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No. 31567-3-III
Balser v. Providence Health Servs.


responded, "Yes." Ms. Balser did not specifically ask Mr. Strandy what experiments he

had performed, but she did ask what facts supported his opinion, what research he had

done on EMS and Russian stimulation, and what he meant by "research." "[A]re you

talking about you get articles, you read them, or are you talking about you give treatment

to people, keep track of it, and then publish literature?" Mr. Strandy responded to the last

question by stating, " Yes, to the former. No, on the latter." Clerk's Papers (CP) at 135.

       Mr. Strandy testified at trial concerning the standard of care for physical therapists,

including proper use of the Russian method, but Providence Health established that Mr.

Strandy was not offering a causation or diagnostic opinion. Providence Health asked him

to explain what research he had done. He answered, "I was curious myself to see whether

or not the electrode placement in this dip or hollow of the neck would produce" the

contracting shoulder movements Mr. Kaluzny and Ms. Balser had described. Later in his

testimony, Mr. Strandy reported that he had experimented with the Dynatron EMS machine

on an office assistant and had determined that placing one of the trapezius electrodes over

the hollow of the clavicle could not have caused Ms. Balser's shoulder to lift. With one

electrode over the 'upper trapezius and one over the clavicle hollow, Mr. Strandy' s assistant

reported she felt only nerve tingling and numbness. On cross-examination, Ms. Balser

asked Mr. Strandy if he had revealed in his deposition that he had made this experiment.

He answered, "You didn't ask [me] that question, but you did ask me if you were to put




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No. 31567-3-111
Balser v. Providence Health Servs.


that electrode in that area, what would you feel, and so I was waiting for you to ask me

how do you know that, and you didn't." Report of Proceedings (RP) at 1042.

       The court asked the jurors if they had any questions at the end of Mr. Strandy's

testimony. Three of the four questions submitted by the jurors involved the

"experiment":

       [1] Since you were willing to "experiment" on your assistant to see if you
       could induce movement in the shoulder by placing an electrode in the
       triangle, is it fair to assume that you were not concerned with creating
       injury to her cervical ganglia? [2] Was the assistant ... afraid to have her
       stellate ganglion damaged to test the hypothesis of achieving a shoulder
       shrug? [and 3] Did your assistant experience any side effects after placing
       electrode in "Triangle Area" such as increase [sic] blood pressure,
       tachycardia, dry mouth, or any other sympathetic system symptoms? How
       long was the machine left turned on with electrode in that "Triangle Area?"

CP at 31-33.

       The parties debated the issue outside the presence of the jury. The Balsers objected

to the questions on several bases, including the fact that the "experiment" had not been

disclosed at the deposition. Providence Health contended that it put the Balsers on notice

when it asked whether Strandy had performed an experiment. The court declined to ask

the three questions, but noted that the whole issue was "out there because the jury already

knows something." RP at 1078.

       The jury concluded that Providence Health was not negligent. The Balsers moved

for a new trial under CR 59(a), contending that the failure to disclose the experiment in

discovery deprived them of a fair trial. The trial court granted a new trial, concluding that

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No. 31567-3-III
Balser v. Providence Health Servs.


Providence Health should have disclosed the infonnation, it was material because it

addressed the central issue the jury had to resolve, and the Balsers were prejudiced by the

misconduct.

       Providence Health timely appealed to this court.

                                        ANALYSIS

       Providence Health challenges the new trial ruling, arguing on mUltiple bases both

that the court abused its discretion in ordering the new trial and that the Balsers waived the

issue by not timely objecting at trial. We will address the two issues in the order noted.

       New Trial Motion

       Providence Health argues that it did not violate its discovery obligations and for that

reason, as well as lack of prejudice, the court erred in granting the new trial. We address

those arguments as one related issue.

       Providence Health recognizes the well settled standards that govern this case. A

ruling on a motion for a new trial under CR 59(a) is reviewed for abuse of discretion.

Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336 (2012). A higher showing of abuse of

discretion applies to an order granting a new trial than to an order denying such a motion.

Jd.; State v. Hawkins, 181 Wn.2d ---, 332 P.3d 408 (2014). Discretion is abused when it

is exercised on untenable grounds or untenable reasons. Teter, 174 Wn.2d at 222;

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




                                             6

No. 31567-3-111
Balser v. Providence Health Servs.


       The Balsers sought a new trial under the provisions of CR 59(a)(l), (2), and (9),

which provide in part that a new trial may be granted due to:

       (1) Irregularity in the proceedings ... ;
       (2) Misconduct of prevailing party ... ;
       (9) That substantial justice has not been done.

The court's order expressly cited all three bases as support for its ruling. CP at 325. 1

       Providence Health argues that it did not fail to disclose Mr. Strandy's experimentation

and that the Balsers simply did not ask the right questions during the deposition. Like

the trial court, we disagree. As detailed previously, when Mr. Strandy was asked the basis

for his expert opinion, he mentioned "research." He subsequently defined "research" as

reading the literature rather than treatment and patient follow-up. CP at 135. However,

he subsequently used his undisclosed experimental efforts to explain that the plaintiffs'

theory of the case could not be correct.

       Providence Health argues that "research" is not "experimentation." That is an

insignificant semantic distinction. Mr. Strandy was asked about the basis for his opinion,

not whether he distinguished "research" from "experimentation." By limiting his answer

to "research," he was then bound by his idiosyncratic view of the meaning of that term. If


       1  Providence Health also argues that the trial court erred in granting the new trial
as a sanction for violating the discovery rules. The court's ruling only addressed the effect
of the surprise testimony under CR 59(a) rather than the discovery rules. We cannot read
this record as establishing that the trial court treated this as a discovery sanction. The
issue was the effect of the surprise testimony on the trial rather than whether discovery
obligations were ignored. We will not separately address the discovery violation claim.

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No. 31567-3-III
Balser v. Providence Health Servs.


what he views as "experimentation" was not a basis for his opinion, then he should not

have been telling the jury about his "experiment".2 Ifhis opinion of what "research"

meant changed between the deposition and trial to include an "experiment", the defense

needed to disclose the new basis for his opinion.

       The trial court correctly decided the experiment needed to be disclosed to the

plaintiffs before trial. The question remaining is whether this "misconduct" justified

granting a new trial. Providence Health argues that this undisclosed testimony was not

prejudicial because all of the experts agreed that placing the electrodes in the wrong

locations would violate the standard of care and cause injury. It also argues that all of the

witnesses agreed that Ms. Balser did lift her shoulder when it was stimulated by the

machine and that the shoulder movement was not possible if the electrodes were placed

where the Balsers said they were.

       However, the Balsers did present some evidence that shoulder stimulation could

occur if an electrode was placed partly over the deltoid with the rest of it over the stellate

ganglion, thus making their theory of the case physically possible. Accordingly, Mr.

Strandy's "experiment" was the only expert non-opinion evidence that called into question

where the electrode was actually placed. Further, the fact that the subject of Mr. Strandy's



        2 While not challenged at trial, Mr. Strandy's "experiment" testimony appears to be
outside the expected scope of his testimony. It was used to contradict the plaintiffs' theory
of the case rather than explain the standard of care for therapists using the Russian method.

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No. 31567-3-III
Balser v. Providence Health Servs.


"experiment" did not suffer injury called into question the dangerousness of actually

stimulating the stellate ganglion. The previously noted questions from the jury all focused

on this point, one that seriously undercut the plaintiffs.

       Given all of this, the trial court correctly determined that Mr. Strandy's "experiment"

went to the issues at the heart of the case. This was a very tenable basis for granting the.

motion for a new trial. The facts here are more compelling than in other cases where our

Supreme Court recently has upheld new trial rulings. In Teter, the court upheld a new trial

granted due to the exclusion of the plaintiffs only urologist, an expert who was a late

addition to the witness list. 174 Wn.2d at 220-22. In Hawkins, the court approved a new

trial where the defendant failed to question one of his trial witnesses about an incident that

other defense witnesses described. 332 P.3d at     ~~   19-21.

       In both Teter and Hawkins, the court upheld the grant of new trials on the basis of

information the witness might have been able to convey at trial. Here, the question

revolved around evidence actually entered at trial on the central point of the case. The

impact of this surprise testimony was more significant than the anticipated testimony that

justified new trials in the other cases. Accordingly, as we must accord the decision to grant

a new trial greater deference than an order denying a new trial, we conclude that the new .

trial remedy was not an abuse of discretion here.

       The trial court did not err in granting the Balsers a new trial.




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No. 31567-3-III
Balser v. Providence Health Servs.


       Waiver

       Providence Health also contends that the Balsers waived any claim of error by

gambling on the verdict before seeking relief. The trial court carefully considered this

claim before rejecting it due to the context in which the issue arose at trial and the

difficulty of finding a cure.

       A party may not gamble on a verdict before seeking to remedy trial misconduct.

Teter, 174 Wn.2d at 225. The failure to seek relief will only be excused if the misconduct

was so flagrant that it was beyond cure. Id. at 225-26. Providence Health contends that

this rule governs here and that the Balsers are not entitled to a new trial because they did

not challenge Mr. Strandy's testimony at trial.

       The trial court considered this to be appellant's best argument in opposition to the

new trial motion. RP (Aug. 14, 2012) at 31-32. The court pointed out that the issue arose

late in the trial in the context of the jury's proposed questions for Mr. Strandy and that

perhaps the court and parties "got sidetracked" from addressing the core problem

presented. Id. at 31. The veteran trial judge admitted that she was uncertain whether or

not the error was curable. Id. at 32. Left with the overall impression that the testimony

was important, making the error highly prejudicial, the court believed that a new trial was

appropriate. Id. at 32-33.

       We believe this was not an instance where the plaintiffs should be faulted for

gambling on a new trial, if they even did so. We doubt that anything short of a mistrial

                                             10 

             ., 



No. 3l567-3-II1
Balser v. Providence Health Servs.


could have cured the error given the centrality of the liability issue and the comparative

weakness of the Balsers' case on that point. Those facts made the error highly

prejudicial. Telling the jury to disregard the testimony would be of dubious value, and

there was no time to try to find a competing expert to dispute Mr. Strandy's

"experiment." The likely outcome of an objection would have been a new trial.

       The purpose of an objection is to allow the trial court to take corrective action to

remedy the problem. If the problem cannot be remedied without granting a new trial,

then there is no need to object. The problem presented to the trial court was not

remediable short of a new trial, which is ultimately the remedy chosen by the trial court . .

On these facts, we do not believe the waiver rule has application.

       The order granting a new trial is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:



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