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                        Appellant,                      DIVISION ONE
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                                                                                      9

RICHARD ZBARASCHUK and JANE                             PUBLISHED
DOE ZBARASCHUK, individually and
their marital community; and ALEXIA                     FILED: September 25, 2017
ZBARASCHUK and JOHN DOE
ZBARASCHUK, individually and their
marital community,

                        Respondents.



       Cox, J. — We review for abuse of discretion a trial court's grant of a new

trial "'unless that grant is based on an error of law."1 We also review for abuse of

discretion a trial court's evidentiary rulings.2 A much stronger showing of abuse

of discretion is required to set aside an order granting a new trial than one

denying a new tria1.3


       1 Clark v. Tenq, 195 Wn. App. 482, 491, 380 P.3d 73 (2016) (quoting Teter v.
Deck, 174 Wn.2d 207, 215, 274 P.3d 336 (2012)), review denied, 187 Wn.2d 1016
(2017); see also Hoskins v. Reich, 142 Wn. App. 557, 566, 174 P.3d 1250 (2008).

       2   Hoskins, 142 Wn. App. at 566.

       3   Clark, 195 Wn. App. at 492.
No. 75532-3-1/2

       Here, the trial judge granted the defendants' motion for a new trial

following a substantial jury verdict for the plaintiff. She did so based on her

exclusion of evidence at trial regarding damages, which she concluded was both

an abuse of discretion and deprived the defendants of a fair trial. Plaintiff fails in

his burden to show that the trial judge abused her discretion by granting a new

trial. We affirm.

       On September 23, 2011, Alexia Zbaraschuk crashed her father's car into

the rear of Brian Hollins' car. He had stopped on a freeway at the time of the

collision. He was seriously injured.

       Hollins commenced this personal injury action against Alexia and her

father ("the Zbaraschuks"). They admitted liability from the accident to the extent

of causation. And they did not dispute Hollins' damages to the extent of

$33,124.18 in medical costs for his injuries.4

       The issue for the jury trial that followed was the total amount of Hollins'

additional past and future earnings damages and past and future non-economic,

damages.5

       Pretrial, Hollins successfully moved in limine to exclude evidence of what

he characterized as his "unrelated accidents, incidents, and medical conditions."6




       4   Clerk's Papers at 437.

       5   Id.

       6   Id. at 80-89.

                                              2
No. 75532-3-1/3

He argued, among other things, that this evidence was not relevant to his claim

in this action.7 The motion judge granted the motion.8

       The parties tried the case to a jury before a different judge than the motion

judge. During trial, the Zbaraschuks requested that the trial judge reconsider the

motion judge's order in limine. They did so during Hollins' testimony as well as at

other times during trial. In each instance, the trial judge denied their requests for

relief from the order in limine.

       The jury returned a verdict in favor of Hollins of over two million dollars in

damages. The Zbaraschuks moved for a new trial under several subsections of

CR 59(a). They argued that the trial judge abused her discretion by excluding

evidence of damages concerning Hollins' pre-accident and post-accident injuries.

The trial judge granted the motion solely on the basis of CR 59(a)(1). She

denied the motion to the extent of the other subsections of CR 59(a).

       Hollins appeals.

                                       NEW TRIAL

       Hollins argues that we should review de novo the trial judge's decision to

grant a new trial and that the decision was erroneous.8 We disagree with both

arguments.




       7   Id. at 81-89.

       8   Id. at 165-166.

       9   Appellant's Opening Brief at 16-20.

                                                 3
No. 75532-3-1/4

                                   Standard of Review

       A trial judge may grant a new trial under CR 59(a). Because the trial

judge in this case based her ruling solely on the first subsection of this rule, we

focus on this subsection. It provides:

       On the motion of the party aggrieved, a verdict may be vacated and
       a new trial granted . . . . Such motion may be granted for any one
       of the following causes materially affecting the substantial rights of
       such parties:

       (1) Irregularity in the proceedings of the court, jury or adverse party,
       or any order of the court, or abuse of discretion, by which such
       party was prevented from having a fair trial.

       We review for abuse of discretion a trial court's grant of a new trial "'unless

that grant is based on an error of law." We also review for abuse of discretion

a trial court's evidentiary rulings.12 A much stronger showing of abuse of

discretion is required to set aside an order granting a new trial than one denying

a new tria1.13 A court abuses its discretion when it makes a decision for

untenable reasons or on untenable grounds.14

       Hollins argues that we have no basis to defer to the trial judge's ruling.

This argument essentially urges us to review de novo the trial judge's decision to




       10   CR 59(a) (emphasis added).

       11 Clark   195 Wn. App. at 491 (quoting Teter, 174 Wn.2d at 215).

       12   Hoskins, 142 Wn. App. at 566.

       13   Clark, 195 Wn. App. at 492

       14 Wade's Eastside Gun Shop, Inc. v. Dep't of Labor and Indus., 185 Wn.2d 270,
277, 372 P.3d 97 (2016).

                                                4
No. 75532-3-1/5

grant a new trial. Because that is not the law, we decline to do so. Rather, we

apply the abuse of discretion standard of review that controls in this case.

       Notably, Hollins does not directly argue that the trial judge abused her

discretion by making her decision either for untenable reasons or on untenable

grounds. Instead, he argues that the motion judge—a different judge from this

trial judge—properly granted relief in limine excluding evidence prior to trial. This

is unpersuasive.

       The proper focus of our review is the trial judge's decision, not the motion

judge's. The primary reason for this is that the trial judge, who had the benefit of

a fully developed trial record, was best informed on the relevant question:

whether a new trial should be granted. To the contrary, the motion judge, who

had a much more limited record than that developed at trial, was far less

informed. Moreover, the question whether a new trial was warranted was simply

not before the motion judge when he ruled in limine before trial. Hollins fails to

present any persuasive authority to counter these basic points.

       The other point that we consider in deciding the proper standard of review

to apply is the nature of the decision underlying this motion for a new trial. Here,

the underlying decision before the trial judge was whether she had erroneously

excluded damages evidence at trial. As the authorities uniformly hold, this is a

classic discretionary decision.15

       Finally, this court also "require[s] a 'much stronger showing of abuse of

discretion to set aside an order granting a new trial than one denying a new


       15   See Hoskins, 142 Wn. App. at 566.

                                                5
No. 75532-3-1/6

trial.'"18 There is nothing either in Hollins' arguments or the record before us that

persuasively supports that he has made this stronger showing in this case.

       Hollins relies on several cases to argue that we should not apply the

abuse of discretion standard of review to this case. Reliance on these cases is

misplaced.

       The first case is McCoy v. Kent Nursery, Inc.17 On review, the issue was

whether the trial court had abused its discretion by granting a new trial based on

CR 59(a)(9).18 That rarely used subsection of the rule involves the question

whether a "lack of substantial justice" applies.19 Division Two of this court

concluded that the trial court had abused its discretion under the factual

circumstances of that case.29

       Here, the trial judge granted a new trial based on CR 59(a)(1), not CR

59(a)(9). Review of the jury verdict was not the issue here. Thus, the two cases

are distinguishable.

       Bunnell v. Barr,21 on which Hollins also relies, is equally unconvincing.

That case reaffirms the constitutional role of the jury.22 But the court there did



       16   Clark, 195 Wn. App. at 492 (quoting Teter, 174 Wn.2d at 222).

       17   163 Wn. App. 744, 260 P.3d 967 (2011).

       18   Id. at 768-69.

       18   Id. at 769.

       28   Id. at 768-71.

       21   68 Wn.2d 771, 415 P.2d 640 (1966).

       22   See id. at 774-77.

                                                 6
No. 75532-3-1/7

not consider whether that role overrides admission of all relevant evidence to

permit a jury to fulfill its constitutional function. This latter question is at issue in

this case. So reliance on this case is also misplaced.

       Thompson v. Grays Harbor Community Hospita123 is the last case on

which Hollins relies. It is not helpful. While noting that a trial court's discretion "is

not without limits," it does nothing to address what those limits are under the

circumstances of this case.24 Because we conclude that this trial judge was well

within her discretion to grant a new trial, Thompson does not control.

       Accordingly, we apply the abuse of discretion standard to our review of

this trial judge's decision to grant a new trial.

                                    Exclusion of Evidence

       Hollins relies heavily on the motion judge's ruling in limine that excluded

certain evidence. We stated earlier in this opinion why that ruling is not the

proper focus of our review. But we also conclude that Hollins' reliance on that

ruling is misplaced for other reasons.

       First, as we read Hollins' motion in limine, it focuses on evidence of

causation, one of the necessary elements he must prove in this personal injury

action. For example, he stated in his motion that his "claim in this lawsuit does

not include left knee, left elbow, low back or hip problems."25 Similarly, he stated




       23   36 Wn. App. 300, 675 P.2d 239 (1983).

       24   Id. at 307.

       25   Clerk's Papers at 81.

                                                 7
No. 75532-3-1/8

that his "claim in this lawsuit does not include a right wrist problem."26 And he

further stated that his April 2011 neck spasm was not symptomatic at the time of

the September 2011 accident underlying this action.27 Thus, he argues that

evidence of these injuries and their treatment was not relevant, and not facts of

consequence, to any issue in this case. He also argued that admission of such

evidence would violate ER 403 by confusing the jury.

       Based on this motion and the response to it, the motion judge entered a

broadly worded order. It excluded:

       any and all evidence, references to evidence, testimony, or
       argument relating to a left knee injury on January 20, 2005 and any
       and all surgery thereto; pre-existing degenerative discogenic
       disease; injury to his neck in 2009; an injury to left elbow in January
       2013 and subsequent surgery in September 2013; low back injury
       in January 2013; right hip injury in January 2013 and subsequent
       hip replacement in June 2015; injury to his right wrist in September
       or October 2015 . . . .[28]

       Whether the motion judge intended to exclude evidence related to

damages for these matters is unclear. Hollins' motion does not expressly

mention damages evidence. Neither does the order in limine. The absence of

such reference is significant, given that there is no dispute that the nature and

amount of damages (other than the $33,124.18 for medical care) were the

primary issues reserved for trial.




       26   Id.

       27   Id.

       28   Id. at 166.

                                             8
No. 75532-3-1/9

      Alternatively, we assume, for purposes of analysis only, that the motion

judge intended to exclude the matters identified in his order for purposes of

damages as well. The question then is whether the trial judge's exclusion of that

evidence at trial was an abuse of discretion.

       Under the "open door" rule, "when one party opens the door to a topic, the

other party may also introduce evidence in order to establish the truth for the

jury."29 As explained by the supreme court:

       It would be a curious rule of evidence which allowed one party to
       bring up a subject, drop it at a point where it might appear
       advantageous to him, and then bar the other party from all further
       inquiries about it. Rules of evidence are designed to aid in
       establishing the truth. To close the door after receiving only a part
       of the evidence not only leaves the matter suspended in air at a
       point markedly advantageous to the party who opened the door, but
       might well limit the proof to half-truths.(331

       Here, during Hollins' direct examination at trial, he testified that he has a

permanent disability and that he had been in treatment "for the last five years."31

This testimony referenced the time period from his September 2011 accident to

the time of trial in 2016. He did not limit his treatment testimony to his neck injury

from this accident, the main focus of his claim in this case.

       The Zbaraschuks then requested that the trial judge revisit the order in

limine excluding evidence of Hollins' other injuries. They argued that he opened

the door to evidence of his damages—for pain and suffering and other aspects



       29   Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 766, 389 P.3d 517 (2017).

       3°   State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).

       31 Report   of Proceedings Vol. 2 (June 2, 2016) at 236-37, 244.

                                                  9
No. 75532-3-1/10

related to these other injuries—by testifying about his permanent disability and

continued treatment up to the time of trial.

       The trial judge denied this request. But she allowed the Zbaraschuks to

question Hollins and his medical providers about the nature of the therapy he

received. The judge explained that the Zbaraschuks should have an opportunity

to clarify whether Hollins' continued treatment related to the injuries he sustained

from the accident.

       After further direct and cross-examination of Hollins, the Zbaraschuks

unsuccessfully renewed their motion to further inquire into Hollins' other injuries.

       We note that there was further extended colloquy about damages

between counsel and the trial judge during the court's consideration of the

proposed jury instructions.32 The Zbaraschuks sought a curative instruction

based on the trial judge's adherence to the ruling in limine excluding evidence.

They sought such an instruction to limit prejudice to them from Hollins' testimony

that he continued treatment up to the time of trial without also permitting

evidence that he had other medical conditions that also required treatment. They

argued they were prejudiced because the jury did not "have [a] complete picture"

of relevant damages evidence.33

       After hearing the arguments of both counsel, the trial judge stated:

       I understand the argument, and I've read the jury instructions
       several times. I've got to tell you, I was very -- it was a really close
       call to not allow evidence regarding these other injuries to the



       32   Report of Proceedings Vol. 3 (June 6, 2016) at 440-49.

       33   Id. at 445.
                                                10
No. 75532-3-1/11

       extent they impact [the] claim for damages. I mean, there is a very
       valid argument for that.[34]

       Nevertheless, despite characterizing the question as "close," the trial

judge did not change her prior rulings to exclude evidence that the motion judge

excluded in his pretrial ruling. She also denied the Zbaraschuks' request for a

curative instruction.

       The jury ultimately returned a verdict exceeding two million dollars in

Hollins' favor. This included over $969,000 in past and future earnings damages

and over $1,000,000 in past and future non-economic damages.

       The Zbaraschuks moved for a new trial under several subsections of CR

59(a), arguing that the trial judge abused her discretion by excluding evidence of

Hollins' other bodily injuries. They argued that the "jury was deceived" because it

was unable to consider these other factors that affected Hollins, which it should

have considered in its damages award.

       The trial judge granted the Zbaraschuks' motion for a new trial. She

concluded that she had abused her discretion by excluding the damages

evidence "for the purpose of establishing credibility and defending against

[Hollins'] claimed damages."35 The judge stated in her written order that:

       [the motion judge] ruled in limine that [Hollins'] unrelated medical
       conditions were not relevant as to causation of his injuries, but they
       became relevant during the course of trial and [Hollins] opened the
       door to evidence of this nature by claiming future wage loss and
       non-economic damages attributable to the injury he sustained in
       the motor vehicle accident. By prohibiting [the Zbaraschuks] from
       eliciting evidence that challenged [Hollins'] credibility. . . or

       34   Id.   at 449.

       35   Clerk's Papers at 621.

                                            11
No. 75532-3-1/12

       damages proximately caused by the motor vehicle accident] [the
       Zbaraschuks] were denied a fair trial. The jury had no evidence by
       which to weigh the long-term effect of [Hollins'] injuries admittedly
       sustained in the motor vehicle accident in context with other events
       also bearing on [his] claimed damages.[381

       The trial judge was correct. The Zbaraschuks admitted liability to the

extent of causation of Hollins' neck injury. Likewise, they did not dispute the

medical costs he incurred to the extent of $33,124.18. Thus, the question for the

jury at trial was what amount of money would "reasonably and fairly compensate

[Hollins] for those damages. . . proximately caused by the [Zbaraschuks']

negligence."37

       Hollins testified at trial that he had a permanent disability and had been in

treatment "for the last five years."38 But the jury did not hear that he was also

treated for other injuries before and after the accident. For example, Hollins tore

a ligament in his left knee five to six years prior to the accident. He also injured

his back, hip, and an elbow after slipping in 2013 and had a hip replaced in 2015.

Importantly, the record shows that Hollins continued to treat these injuries after

the September 23, 2011 accident and that he has physical limitations due to

these injuries.

       Hollins' testimony created an inference that his disability, continued

treatment, and inability to maintain his previous employment resulted solely from

his neck injury from the accident. The Zbaraschuks sought to challenge Hollins'


       38   Id. at 622.

       37   Id. at 432.

       38   Report of Proceedings Vol. 2 (June 2, 2016) at 236-37, 244.

                                                12
No. 75532-3-1/13

credibility and rebut this inference with evidence of his other bodily injuries. They

were precluded from doing so during trial.

       Hollins argues that he did not open the door to evidence of his other

injuries. And even if he did, he argues that the Zbaraschuks sought to present

"speculative and unduly prejudicial" evidence to rebut the testimony. Not so.

       Our prior discussion in this opinion explains how Hollins opened the door

to this evidence by his testimony that he continued treatment "for the last five

years."39 This shows that he opened the door to damages evidence showing

other reasons for his treatment.

       He also testified at trial and during a discovery deposition about his

injuries and treatment. This evidence is neither speculative nor unduly

prejudicial.

       Additionally, Hollins argues that the motion judge did not abuse his

discretion by excluding these injuries because the Zbaraschuks failed to produce

the evidence required to admit these other injuries. But whether the motion

judge abused his discretion is not the proper focus of our inquiry. Whether the

trial judge did so is our focus.

       In any event, the cases on which he relies to support this argument do not

control. For example, he relies on Allen v. Mattoon43 for the proposition that

"admission of [evidence of] the second collision [in that case] was improper"

because there was no medical evidence that the plaintiff's injuries were caused


       39   Id.

       40 8 Wn. App. 220, 504 P.2d 316 (1972).

                                             13
No. 75532-3-1/14

by the collision.'" From this, he asserts that medical evidence is necessary for

the admission of damages evidence.

      We do not read Allen for the proposition that medical evidence is always

required for admission of damages evidence. In that case, Division Three of this

court criticized the trial court's admission of evidence as "only a fragmentary and

nonspecific reference in the testimony of" a medical expert.42 This hardly

supports a bar to admission of all evidence that is relevant to the issue of

damages.

       Colley v. Peacehealth43 is instructive on this point. In that medical

malpractice action, we noted that defense experts may offer competing causation

theories without speaking in terms of medical probability." Applying that

principle to this case, there simply was no basis to exclude defense damages

evidence because of the alleged lack of medical support.

       The other cases on which Hollins relies involved prior injuries or conditions

and whether a later accident proximately caused the plaintiff's claimed

injuries.45 For example, in Washington Irrigation & Development Co. v. Sherman,


       41   Id. at 229-30.

       42   Id. at 229.

       43   177 Wn. App. 717, 312 P.3d 989 (2013).

       44   See id. at 729-30.

       45 See Harris v. Drake, 152 Wn.2d 480, 494, 99 P.3d 872 (2004); Hoskins, 142
Wn. App. at 568-70; see also Berger v. Sonneland, 144 Wn.2d 91, 110-11,26 P.3d 257
(2001); Hayden v. Boeinc Co., No. 73344-1-1, slip op. at 4-8 (Wash. Ct. App. April 25,
2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/733443.pdf., review denied
sub nom., 186 Wn.2d 1012 (2016); Wash. Irric. & Dev. Co. v. Sherman, 106 Wn.2d 685,
691-92, 724 P.2d 997 (1986); Mattoon, 8 Wn. App. at 229-30.

                                              14
No. 75532-3-1/15

Elbridge Sherman suffered an industrial back injury while working.46 At trial, his

employer questioned the parties' medical experts about two car accidents that

Sherman was involved in after his industrial injury.47 It specifically asked whether

the accidents affected Sherman's preexisting back condition:45

       In Harris v. Drake, Bradley Harris, a painter, sustained a certain shoulder

injury from a car accident.49 After recovering from the accident, Harris resumed

his painting job, but his shoulder problem reappeared.53 At trial, the parties

disputed the causation of his injury, and Harris' surgeon testified that painters

often have the same shoulder injury due to their profession.51

       Lastly, in Hoskins v. Reich, Michael Hoskins sustained neck, back, and

arm injuries from a car accident.52 At trial, the parties disputed the causation of

his injuries, and the trial court admitted evidence of certain treatment he received

before the accident.53

       But the Zbaraschuks admitted to proximately causing Hollins' neck injury

in this case. Thus, only damages was at issue. The Zbaraschuks sought to



       46   106 Wn.2d 685, 686, 724 P.2d 997 (1986).

       47   Id. at 691.

       45   Id.

       49   152 Wn.2d 480, 484, 493, 99 P.3d 872 (2004).

       50   Id. at 493.

       51   Id. at 493-94.

       52   142 Wn. App. 557, 560, 174 P.3d 1250 (2008).

       53   Id. at 560-70.

                                               15
No. 75532-3-1/16

admit evidence of Hollins' other bodily injuries to challenge his credibility and

ensure that the jury had the complete picture as to damages. They did not argue

that Hollins' other injuries proximately caused his neck injury. Thus, Hollins'

reliance on these cases is misplaced.

       Lastly, Hollins argues that the trial judge improperly substituted her

judgment for that of the jury because she disagreed with the verdict. This

argument is contrary to the record.

       In granting the new trial, the trial judge stated during her oral remarks:

             I'm not saying that their decision was in error or they
       considered things incorrectly or anything of that nature. I'm
       obviously not in a position to say that.(54]

       The judge's written order that follows incorporates this and her other oral

remarks in granting the new trial.

       Moreover, the order denies the new trial motion to the extent of

subsections other than CR 59(a)(1). Among these other subsections is CR

59(a)(7), dealing with "evidence to justify the [jury] verdict." Thus, the trial judge

expressly denied the motion to the extent it challenged the jury verdict.

       To say that the trial judge substituted her judgment for that of the jury is

unwarranted on this record.

                                  Prevention of Fair Trial

       Hollins argues that even if the trial judge abused her discretion, that abuse

did not prevent the Zbaraschuks from having a fair trial. We again disagree.




       54   Report of Proceedings (July 6, 2016) at 35.

                                                 16
No. 75532-3-1/17

       Once the trial judge determines there was an abuse of discretion, the

related question is whether the abuse prevented the moving party from having a

fair tria1.55 This record supports this trial judge's decision that the trial was not fair

to the Zbaraschuks.

       Here, the trial judge determined that "[t]he jury had no evidence by which

to weigh the long-term effect of [Hollins] injuries admittedly sustained in the

motor vehicle accident in context with other events also bearing on [Hollins]

claimed damages."56 Hollins fails to satisfactorily explain how a trial could be fair

under these circumstances.

       Even though Hollins has physical limitations due to his other injuries, the

evidence presented to the jury created an inference that his disability, continued

treatment, and inability to maintain his employment resulted solely from his neck

injury. Because the trial court prohibited the Zbaraschuks from challenging

Hollins' credibility and rebutting this inference, the jury could not consider

whether his other injuries affected the amount of his claimed damages. This was

unfair to the Zbaraschuks.

       Hollins argues that the Zbaraschuks received a fair trial for the following

four reasons. None is persuasive.

       First, Hollins contends that in closing argument, the Zbaraschuks argued

that the jury should reduce the damages award based on his other injuries. But

lawyers' arguments are not evidence. And without the damages evidence


       55   CR 59(a).

       56   Clerk's Papers at 622.

                                               17
No. 75532-3-1/18

excluded by the trial judge, the jury was left with a void it could not fill other than

with speculation.

       Second, Hollins argues that the alleged prejudice resulting from the

exclusion of this evidence was cured by the trial court's instruction. Not so.

       The court instructed the jury to disregard testimony regarding treatment

Hollins received after 2012. But this instruction specifically concerned the cost

of medical treatment that Hollins received, which was not an issue at trial. It

provided:

                You are instructed that the value of reasonable and
       necessary past medical care caused by the collision is $33,124.18.
       . . . Plaintiff has no claim for the cost of medical care received after
       December 2012 or beyond. You should disregard testimony, if any,
       that describes or relates to medical treatment Plaintiff received or
       may seek after December 2012, other than self-help care.[571

       This limiting instruction did nothing to address other damages, which

included past and future economic and non-economic damages. Thus, it did not

cure prejudice, as argued.

       Third, Hollins argues that the jury is presumed to have followed the court's

instruction to "determine the amount of money that will reasonably and fairly

compensate Plaintiff for those damages you find were proximately caused by the

Defendants' negligence."58 This is true. But, absent the evidence the trial judge

excluded during trial, this presumption is irrelevant. The jury lacked all relevant

evidence to make a proper determination of damages.



       57   Clerk's Papers at 426.

       58   Id. at 432.

                                               18
No. 75532-3-1/19

       Fourth, Hollins argues that the evidence supported the verdict and that the

verdict was not excessive. But whether the verdict was excessive or supported

by evidence is not the issue. The issue is whether the trial court abused its

discretion in excluding damages evidence and whether that abuse prevented the

Zbaraschuks from having a fair trial.

       In sum, the trial court did not abuse its discretion by granting a new trial.

       Lastly, Hollins requests post judgment interest. Because we affirm the

trial judge's grant of a new trial, this question is moot.

       We affirm the order granting the Zbaraschuks' motion for a new trial.




WE CONCUR:



                                                             icke




                                              19
                              Hollins v. Zbaraschuk, No. 75532-3-1


       DWYER, J. (dissenting) — Standard of review is an arcane appellate concept that

is of importance to few and of interest to fewer. Nevertheless, in this case, it makes all

the difference.

       The key decision on review is the trial judge's posttrial ruling that a midtrial

judicial determination constituted an abuse of discretion. The majority opinion treats the

posttrial ruling as itself being a discretionary one and, on appeal, applies an abuse of

discretion standard in reviewing that ruling. I disagree. I believe that the posttrial ruling

was a ruling on a legal question, subject to no deference on appeal. This conviction

leads me to reach a different result on the merits of the controversy.

       The defendant's motion for a new trial was granted pursuant to the applicable

court rule, which authorizes such relief "for any one of the following causes materially

affecting the substantial rights of such parties: (1) . . . abuse of discretion. . . ." CR

59(a). In my view, the determination of whether a trial court's pretrial or midtrial ruling

constituted an abuse of discretion is a legal question, not a discretionary ruling. Legal

questions are reviewed de novo, even when they arise in the context of a new trial

ruling. Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812, 440 P.2d 834 (1968).

Appellate courts review trial court rulings for abuse of discretion "only when the grounds

on which the trial court grants a new trial are based on an exercise of discretion."

Detrick, 73 Wn.2d at 812. When an order granting or denying a new trial is "predicated

upon rulings as to the law. . . no element of discretion is involved." Johnson v. Howard,

45 Wn.2d 433, 436, 275 P.2d 736 (1954).
No. 75532-3-1/2


        A posttrial ruling as to whether a trial court abused its discretion by excluding

evidence presents a legal question, not a discretionary one. It is, therefore, entitled to

no deference on further posttrial review.

        On direct appeal from a judgment entered on a jury's verdict, it is common for the

Court of Appeals to be asked to review a trial judge's pretrial or midtrial ruling admitting

or excluding evidence. We do so by applying an abuse of discretion standard to the trial

judge's decision) In so doing, we are not, ourselves, exercising discretion. Instead, we

are answering a legal question.

        On occasion, unhappy litigants are reluctant to accept the appellate court's

answer to such a question. These litigants may seek review by the Supreme Court.

From time to time, the Supreme Court agrees to review such a case.

        When it does so, the Supreme Court affords no deference to the appellate court's

ruling. It does not apply an "abuse of discretion" standard to the appellate

determination. Instead, the Supreme Court views the matter as presenting a legal

question and ignores the appellate ruling, instead applying an abuse of discretion

standard directly to the trial court ruling at issue.2

        In the present case, we should analyze the trial court's ruling on the legal

question (did either the pretrial ruling or the midtrial ruling constitute an abuse of

discretion?) in the same way as would the Supreme Court if the question had worked its

way up to that court on direct review (in the absence of a new trial motion). We should



         I See, e.g., Colley v. Peacehealth, 177 Wn. App. 717, 312 P.3d 989 (2013) (pretrial evidentiary
ruling); Jordan v. Berkey, 26 Wn. App. 242, 611 P.2d 1382 (1980) (midtrial ruling altering pretrial
exclusion of evidence).
          2 See, e.g., In re Det. of Post, 170 Wn.2d 302, 241 P.3d 1234 (2010); State v. Magers, 164
Wn.2d 174, 189 P.3d 126 (2008); State v. Powell, 126 Wn.2d 244, 893 P.2d 615 (1995).
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afford no deference to the posttrial ruling on the question and instead focus our review

directly on the pretrial and midtrial judicial rulings themselves.

         Were we to do this, I believe, the result of this appeal would be entirely different.

         First, to analyze the pretrial ruling. Hollins' complaint alleged that defendant's

breach of her duty of care was the sole proximate cause of "Hollins' injuries and

damages as alleged." As trial approached, Hollins moved to exclude any evidence of all

other conditions, including the prior neck injury. Defendant's opposition memorandum

devoted three paragraphs to this issue. Two of these paragraphs addressed the prior

neck injury (which is not at issue on appeal). The other paragraph conceded that all

other evidence could be excluded.3

         The judge "exclude[d] any and all evidence, references to evidence, testimony, or

argument relating to a left knee injury, . . . all surgery thereto, . . . pre-existing

degenerative disc disease, injury to his neck in 2009, an injury to left elbow, . . . and

subsequent surgery, . . . low back injury, . . right hip injury, . . . injury to right wrist." In

other words, it was all excluded. And the exclusion was not limited to any purpose. The

order does not reference "opening the door." Defense counsel never argued that

defendant should be allowed to reference these matters, admit evidence, or argue

about them regarding proof of damages. The exclusion was total.

         If there had been no new trial motion and we were called upon to review this

ruling on direct appeal, would we affirm it? We would.




         3   None of the 40 pages of authority cited to us on appeal was submitted to the pretrial motion
judge.

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        The motion was properly brought. The defendant had a full and fair opportunity

to litigate the motion. The defendant made the argument her counsel chose to make,

thereby forfeiting all others. And the judge ruled based on what was then before the

court. It was a sound ruling. It was not an abuse of discretion. We would affirm it.

        Now to the midtrial ruling.4 In the face of a justifiable—affirmable—pretrial ruling,

the trial judge was asked to undo the pretrial ruling, thereby admitting evidence that had

been excluded and allowing argument that had been precluded. This would have

greatly altered the issues in the ongoing trial and have been greatly disruptive in

general. The trial judge said no. If there had been no new trial motion and we were

called upon to review this ruling on direct appeal, would we affirm it? We would.

        The pretrial ruling was proper. Plaintiff then presented his case in accordance

with that ruling. The defendant did not claim that the plaintiffs testimony was a surprise

or that it was at variance with answers given in pretrial discovery. Instead, the

defendant simply wanted a "do-over"—the opportunity to argue that which it had chosen

not to argue to the pretrial motion judge.

        Would no reasonable judge deny the defendant's request? Was denial of the

defendant's request outside the range of acceptable choices available to the judge?

Was denial of such a dramatic request, in the middle of an ongoing trial, a decision

made with no tenable basis? These are the abuse of discretion formulations applicable

to the midtrial decision.




          4 I acknowledge that the defendant's request arose several times. For ease of understanding, I
will refer to the ruling as a singular one.

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       Of course, some reasonable judges would have denied the request (even if

others might have granted it). Of course, denying the request was within the range of

acceptable choices. Of course, the timing of the request, the defendant's advancement

of previously forfeited arguments, and the disruption caused to the trial process—

coupled with the propriety of the original, pretrial ruling—all combined to provide a

tenable basis for denial.

       On direct appeal, we would affirm both the pretrial and midtrial rulings.

       The fact that a posttrial motion was made should neither distort our inquiry nor

change the result. The rulings made were affirmable. Therefore, the judge erred by

concluding otherwise in the posttrial ruling. We should reverse that decision. Judgment

should be entered on the jury's verdict.

       Because the majority determines otherwise, I respectfully dissent.
