                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                             July 21, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 JENNIFER E. LINDSAY-SHINSATO and                                     No. 52863-1-II
 DOUGLAS T. SHINSATO, wife and husband,
 and the marital community comprised
 thereof,

                                Respondents,

         v.

 JEAN M. HERMAN and JOHN DOE
 HERMAN, wife and husband, and the marital
 community comprised thereof,                                  UNPUBLISHED OPINION

                                Appellants.

       WORSWICK, J. — Jennifer Lindsay-Shinsato and Jean Herman were involved in a vehicle

collision. The issue of damages proceeded to a jury trial, and the jury returned a verdict for

Lindsay-Shinsato.

       Herman appeals, arguing that the trial court erred by granting Lindsay-Shinsato’s motion

in limine and by giving two jury instructions, instruction 8 and supplemental instruction 12.

Lindsay-Shinsato argues that Herman failed to preserve her argument regarding supplemental

instruction 12 because she did not object at trial.

       We hold that the trial court did not err by granting Lindsay-Shinsato’s motion in limine

or by giving instruction 8. We also hold that Herman raises a manifest error affecting a

constitutional right regarding supplemental instruction 12, but that the trial court did not err

when giving the instruction. Thus, we affirm.
No. 52863-1-II


                                             FACTS

       Lindsay-Shinsato was injured in a motor vehicle collision caused by Herman in 2012.

Herman admitted liability, but the parties disagreed regarding damages. Relevant to this appeal,

the parties disagreed about the relationship between Lindsay-Shinsato’s preexisting medical

conditions and her post-accident injuries. The issue of damages proceeded to a jury trial, and a

jury determined Lindsay-Shinsato and her husband were entitled to $726,164 for past and future

economic and noneconomic damages.

                                    I. MOTION IN LIMINE “L”

       The parties made a number of motions in limine before proceeding to trial. Specifically,

Lindsay-Shinsato’s motion in limine “L,” sought to exclude:

       Any evidence or reference to Plaintiff’s prior physical health . . . unless (a) such
       condition was symptomatic at the time of the injury, or was (b) a latent pre-existing
       condition that was made active by the injury.

Clerk’s Papers (CP) at 21. Lindsay-Shinsato listed her asymptomatic medical conditions,

including neck pain, shoulder pain, and cervicogenic headaches arising from a previous shoulder

injury. Lindsay-Shinsato sought treatment for the shoulder injury, and her symptoms resolved.

The medical records showed that Lindsay-Shinsato’s last mention of pain prior to the collision in

2012 was more than a year prior to the collision.

       At a hearing regarding motion in limine “L,” Lindsay-Shinsato argued that evidence

regarding these asymptomatic conditions should be excluded because these conditions were

asymptomatic for over a year prior to the collision. Herman argued that the medical record was

“open-ended” and that there was no affirmative showing that her condition resolved. 1 Verbatim

Report of Proceedings (VRP) at 9. The trial court asked if Herman planned to present evidence



                                                2
No. 52863-1-II


that Lindsay-Shinsato had complaints regarding her shoulder after December 2010. Herman’s

counsel responded, “I don’t know that I have that, Your Honor.” 1 VRP at 10. The trial court

granted motion in limine “L” stating, “Unless you have some evidence showing that there were

ongoing complaints, I’m obliged to not allow any sort of mention of the left shoulder under these

circumstances.” 1 VRP at 10.

                                II. RELEVANT TRIAL TESTIMONY

       Lindsay-Shinsato hired Dr. David Spanier, a physiatrist, to render expert opinions for

trial. Dr. Spanier attributed a number of Lindsay-Shinsato’s injuries to the collision. He testified

that the collision caused cervicogenic headaches, cervical and cervicothoracic sprain/strain with

segmental dysfunction, C4-5 and C5-6 disc protrusions, a left shoulder sprain with moderate

degenerative change, mild AC (acromioclavicular) joint degenerative change, left supraspinatus

partial thickness tear and tendonitis, upper extremity paresthesias, and cervical and thoracic

myofascial pain. Dr. Spanier testified that without the collision, Lindsay-Shinsato would not

have exhibited the pain symptoms she complained of following the collision.

       A portion of Dr. Spanier’s prerecorded testimony was inadvertently admitted because of

improper editing.1 Specifically, Dr. Spanier was asked if Lindsay-Shinsato’s disc protrusions

were related to the collision and he replied, “Potentially so, yes.” 3 VRP at 339. Based on

motion in limine “L,” Herman immediately asked to speak to the trial court outside the presence

of the jury. During these discussions, Herman argued that she should be able to present Dr.

Spanier’s testimony that the collision lit up Lindsay-Shinsato’s disc protrusions. The trial court


1
 In their briefing, each party seemed to blame the other for this error. But both parties appear to
have had some responsibility for editing, and both parties acknowledged they overlooked this
portion during the editing process.


                                                 3
No. 52863-1-II


allowed testimony related to lighting up the preexisting disc protrusions, but ruled that no other

preexisting conditions could be discussed. Thus, two additional portions of Dr. Spanier’s

prerecorded testimony were played. In these portions, Dr. Spanier responded to Herman’s

questioning, testifying that Lindsay-Shinsato had disc protrusions before the collision and these

disc protrusions were subsequently lit up by the collision.

       Herman hired Dr. Steven Klein, a neurosurgeon, to render expert opinions for trial. Dr.

Klein testified and provided an opinion regarding Lindsay-Shinsato’s injuries from the collision.

Before trial, Dr. Klein and another doctor, Dr. Brandt Bede, examined Lindsay-Shinsato and

wrote a joint report. Herman used this report to refresh Dr. Klein’s recollection, but the report

was not admitted into evidence. Dr. Klein testified that as a result of the collision, Lindsay-

Shinsato suffered neck pain, cervical and lumbar strains, left head and left shoulder contusions.

       During Herman’s questioning, Dr. Klein read from Dr. Spanier’s report that stated

Lindsay-Shinsato’s preexisting cervical disc protrusions were lit up as a result of the collision.

The trial court excused the jury and Lindsay-Shinsato argued that Dr. Klein’s testimony violated

motion in limine “L.” The trial court reiterated that there was to be no discussion of preexisting

conditions. When the jury returned, Herman resumed questioning Dr. Klein, and immediately

asked about disc protrusions, prompting another objection from Lindsay-Shinsato. The jury

again left the courtroom. During argument over this objection, the trial court asked Herman for

an offer of proof regarding Dr. Klein’s testimony on the disc protrusions. Herman asked Dr.

Klein whether Lindsay-Shinsato’s disc protrusions related to the collision. Dr. Klein responded




                                                  4
No. 52863-1-II


that the disc protrusions were not related to the collision and that many members of the public

have disc protrusions.2 The jury then reentered the courtroom.

       When asked again whether the disc protrusions related to the collision, Dr. Klein testified

that one-third of the public has disc protrusions without any pain and, as a result, he could not

correlate the disc protrusions to Lindsay-Shinsato’s pain. Neither party asked Dr. Klein about

any natural progression of Lindsay-Shinsato’s disc protrusions, and despite Lindsay-Shinsato’s

objections, the trial court did not exclude or strike any of Dr. Klein’s testimony.

       Lindsay-Shinsato called Dr. Spanier in rebuttal. A juror submitted a question to Dr.

Spanier regarding Lindsay-Shinsato’s loss of ability to engage in physical activities that said,

“To what extent should we discount the car crash as the cause of this loss on the grounds that her

advancing age would have precluded those activities?” 5 VRP at 599. Dr. Spanier

acknowledged that bodies degenerate with age, but stated:

       I believe the subject collision was the proximate cause that changed everything for
       her and sort of set her on a much more steep trajectory for decline. Would she
       eventually have got there? It’s possible. . . . Just because we have a few grey hairs
       doesn’t mean we have to throw in the towel and give up all.
               ....
               . . . And it’s clear in my mind, the subject collision was the precipitating
       cause that changed it all for her.

5 VRP at 599-600.




2
  Herman asked, “Are they related to the collision?” And Dr. Klein responded, “No, they’re not
related to the collision, because a third of the public has these things and you can’t correlate it
with pain. It’s such a common, ubiquitous finding that nobody can assume this is a causation of
pain.” 4 VRP at 508-09.



                                                  5
No. 52863-1-II


                                      III. JURY INSTRUCTIONS

       Two jury instructions are at issue in this appeal: supplemental instruction 12 and

instruction 8.

       Following Dr. Klein’s testimony related to Lindsay-Shinsato’s cervical disc protrusions,

Lindsay-Shinsato proposed a supplemental curative instruction. The proposed instruction stated:

       [A]ny pain or disability you find that Jennifer Shinsato suffered from her cervical
       facet joints, cervical discs or cervical disc protrusions left shoulder or in the form
       of cervicogenic headaches after the accident is attributable to the accident;
       therefore, any such pain or disability is the responsibility of the defendant.

5 VRP at 571.

       Herman responded to the proposed instruction, “[I]t mentions a lot of different things in

here. Really the only issue I think that is in the open is the cervical disc protrusions.” 5 VRP at

572. The trial court stated that it would limit the proposed instruction to the disc protrusions and

Herman responded, “That’s fine. I think we can live with that.” 5 VRP at 573. As a result,

supplemental instruction 12 stated:

       If you find that Jennifer Shinsato suffered pain or disability from her cervical disc
       protrusions you should consider this pain or disability along with any other injuries,
       if any, proximately caused by the occurrence.

CP at 101.

       Instruction 8, regarding preexisting medical conditions, was based on 6 Washington

Practice: Washington Pattern Jury Instruction: Civil 30.18 (7th ed. 2019) (WPI). Herman

proposed that the trial court give the entire WPI 30.18 instruction, including the optional last

paragraph which states: “There may be no recovery, however, for any injuries or disabilities that

would have resulted from the natural progression of the pre-existing condition even without this




                                                 6
No. 52863-1-II


occurrence.” The trial court gave the instruction without the optional “natural progression”

language.3

          During discussions about exceptions to the jury instructions, Herman took exception to

the omission of the natural progression language in the last paragraph for instruction 8, stating,

“Your Honor, my only, I guess, exception is that of course there is the natural progression

portion of the jury instruction on [WPI] 30.18.01 . . . . Nothing further. Otherwise, I accept.” 6

VRP at 767.

          The jury returned a verdict and monetary damages in favor of Lindsay-Shinsato, and the

trial court entered a judgment, which it later amended.4 Herman appeals the amended judgment.

                                             ANALYSIS

                                      I. MOTION IN LIMINE “L”

          Herman argues that the trial court erred by granting Lindsay-Shinsato’s motion in limine

“L” regarding evidence of preexisting degenerative conditions. We disagree.




3
    Instruction 8 stated:

                 If you find that:
                 (1) before this occurrence the plaintiff had a bodily condition that was not
          causing pain or disability; and
                 (2) the condition made the plaintiff more susceptible to injury than a person
          in normal health,
                 then you should consider all the injuries and damages that were proximately
          caused by the occurrence, even though those injuries, due to the pre-existing
          condition, may have been greater than those that would have been incurred under
          the same circumstances by a person without that condition.

CP at 112.
4
    The reasons for the amended judgment are not at issue on appeal.


                                                   7
No. 52863-1-II


       We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Diaz v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). A trial court abuses its discretion when

its decision is manifestly unreasonable or based on untenable grounds. Salas v. Hi-Tech

Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010). A decision is manifestly unreasonable

if it adopts a view that no reasonable person would adopt. Salas, 168 Wn.2d at 669. A decision

is based on untenable grounds or reasons if the trial court applied an incorrect legal standard or

relied on unsupported facts. Salas, 168 Wn.2d at 669.

       The mere existence of a preexisting medical condition is insufficient to infer a causal link

from the complained of injury to the preexisting condition. Little v. King, 160 Wn.2d 696, 705,

161 P.3d 345 (2007). “When an accident lights up and makes active a preexisting condition that

was dormant and asymptomatic immediately prior to the accident, the preexisting condition is

not a proximate cause of the resulting damages.” Harris v. Drake, 152 Wn.2d 480, 494, 99 P.3d

872 (2004). As a result, evidence of an asymptomatic preexisting condition is inadmissible

because it “would only invite the trier of fact to speculate without an appropriate factual basis.”

Little, 160 Wn.2d at 705.

       We hold that the trial court did not abuse its discretion by granting Lindsay-Shinsato’s

motion in limine “L.” During argument on the motion, Herman acknowledged that she did not

have evidence that Lindsay-Shinsato suffered from any symptomatic preexisting conditions

before the collision with Herman. Because Herman conceded that she had no evidence that

Lindsay-Shinsato suffered from any preexisting symptomatic condition, the trial court did not

abuse its discretion regarding motion in Limine “L.”




                                                 8
No. 52863-1-II


                                      II. OPENING THE DOOR

       Herman argues that because Lindsay-Shinsato opened the door to her preexisting medical

conditions, Herman should have been able to submit evidence that Lindsay-Shinsato’s post-

accident injuries were a natural progression of Lindsay-Shinsato’s preexisting medical

conditions. We disagree that Lindsay-Shinsato opened the door.

       Generally, when one party opens the door to a topic, the other party may also introduce

evidence to establish the truth for the jury. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743,

766, 389 P.3d 517 (2017). We review a trial court’s decision to admit or exclude evidence for an

abuse of discretion. Diaz, 175 Wn.2d at 462.

       Here, a portion of Dr. Spanier’s prerecorded testimony was inadvertently admitted.

Lindsay-Shinsato and Herman both acknowledged that they overlooked this portion during the

editing process. Following the mistake, Herman argued that she should be able to present Dr.

Spanier’s testimony that the collision lit up Lindsay-Shinsato’s disc protrusions. The trial court

allowed testimony related to lighting up the preexisting disc protrusions, but ruled that no other

preexisting conditions could be discussed.

       Herman argues that the trial court erroneously prevented Dr. Klein from testifying about

a natural progression of Lindsay-Shinsato’s disc protrusions because Lindsay-Shinsato opened

the door through the inadvertently admitted portion of Dr. Spanier’s testimony. However,

Lindsay-Shinsato did not open the door. Both parties took some blame for the editing mistake.

As a result of this mutual mistake, the trial court allowed some additional evidence. Herman

appears to argue that because Lindsay-Shinsato’s witness’s testimony breached the subject of

disc protrusions, Lindsay-Shinsato opened the door. But this is not the test. The statement was



                                                 9
No. 52863-1-II


elicited during a deposition that was subsequently redacted for trial. The redaction was the

responsibility of both parties. Herman cannot show that Lindsay-Shinsato opened the door.

Consequently, we hold that the trial court did not abuse its discretion by continuing to exclude

evidence under its order regarding motion in limine “L.”

                                      III. JURY INSTRUCTIONS

       Herman argues that the trial court erred regarding instruction 8 and supplemental

instruction 12. We disagree.

       We review de novo whether a jury instruction is an accurate statement of the law. Terrell

v. Hamilton, 190 Wn. App. 489, 498, 358 P.3d 453 (2015). But we review for an abuse of

discretion the trial court’s decision regarding how to word an instruction or whether to give an

instruction. Terrell, 190 Wn. App. at 498.

       Jury instructions are generally sufficient if they (1) are supported by substantial evidence,

(2) allow each party to argue its theory of the case, and (3) properly inform the trier of fact of the

applicable law when all instructions are read together. Fergen v. Sestero, 182 Wn.2d 794, 803,

346 P.3d 708 (2015). The supporting facts for an instruction must consist of more than

speculation and conjecture. Fergen v. Sestero, 174 Wn. App. 393, 397, 298 P.3d 782 (2013),

aff’d 182 Wn.2d at 794. If a party’s theory of the case lacks substantial evidence, a trial court

must not instruct the jury on that theory. Fergen, 174 Wn. App. at 397.

A.     Instruction 8

       Herman argues that the trial court erred when it did not include the optional natural

progression language from WPI 30.18 in instruction 8. Herman argues that “[t]he omitted




                                                 10
No. 52863-1-II


natural progression sentence . . . precluded Ms. Herman from arguing her theory of the case to

the jury and made the instructions misleading.” Br. of Appellant at 26. We disagree.

       The trial court’s instruction to the jury did not include the optional WPI language, which

provides that a plaintiff cannot recover for any injuries that would have resulted from the natural

progression of the preexisting condition. But an instruction that contains language regarding the

natural progression of a preexisting condition—here Lindsay-Shinsato’s disc protrusion—

requires evidence to support that natural progression. Fergen, 174 Wn. App. at 397. The only

evidence Herman cites in her brief to support this instruction is the Klein-Bede medical report.

But this report was not admitted as evidence. Moreover, Dr. Klein specifically testified that he

could not correlate Lindsay-Shinsato’s post-collision injuries to her preexisting cervical disc

protrusions. And Dr. Spanier testified that the collision caused Lindsay-Shinsato’s health

decline, and that her post-collision injuries were not a natural progression of her age.

       Herman fails to point to any admitted evidence to support the natural progression

instruction language. Thus, we hold that the trial court did not abuse its discretion by excluding

the natural progression language from instruction 8.

B.     Supplemental Instruction 12

       Herman argues that the trial court erred by giving supplemental instruction 12 because it

“effectively decided medical causation as a matter of law,” placed undue emphasis on Lindsay-

Shinsato’s case, and was an impermissible comment on the evidence which led to a violation of

her right to a fair trial. Br. of Appellant at 21. Lindsay-Shinsato argues that Herman failed to

object to supplemental instruction 12, thus failing to preserve any alleged error. In her reply,

Herman argues that a comment on the evidence is a manifest error affecting a constitutional right



                                                 11
No. 52863-1-II


under RAP 2.5(a). Herman cites article IV, section 16 of the Washington Constitution which

states, “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but

shall declare the law.” We address the issue, but hold that the trial court did not err by giving

supplemental instruction 12.

       In general, an appellate court will refuse to review a claim of error that was not raised at

the trial court. RAP 2.5(a). However, a party may raise a manifest error affecting a

constitutional right for the first time on appeal. RAP 2.5(a)(3). Article IV, section 16 of the

Washington Constitution prohibits a judge from expressing to the jury his or her personal

attitudes regarding the merits of the case or instructing the jury that issues of fact have been

established as a matter of law. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).

Moreover, we presume judicial comments on the evidence to be prejudicial. State v. Brush, 183

Wn.2d 550, 559, 353 P.3d 213 (2015). Because a judicial comment on the evidence is explicitly

prohibited by the Washington Constitution and is presumed to be prejudicial, a claimed error

based on such a comment involves a manifest constitutional error that may be challenged for the

first time on appeal. Levy, 156 Wn.2d 719-20. Thus, because Herman raises a manifest error

affecting a constitutional right, we review whether the trial court improperly commented on the

evidence by giving supplemental instruction 12.

       We review whether a jury instruction amounts to a comment on the evidence de novo. In

re L.T.S., 197 Wn. App. 230, 234, 389 P.3d 660 (2016). An instruction that accurately states the

law pertaining to an issue does not constitute an improper comment on the evidence. L.T.S., 197

Wn. App. at 235. Rather, an improper comment on the evidence conveys a judge’s personal




                                                 12
No. 52863-1-II


attitudes toward the merits of the case or allows the jury to infer what the judge personally

believed or disbelieved of the particular evidence in question. L.T.S., 197 Wn. App. at 235.

       Supplemental instruction 12 states, “If you find that Jennifer Shinsato suffered pain or

disability from her cervical disc protrusions you should consider this pain or disability along with

any other injuries, if any, proximately caused by the occurrence.” CP at 101. This instruction

did not require that the jury find Lindsay-Shinsato suffered injury or damages as a result of disc

protrusions. Only if the jury found that she suffered from disc protrusions, then the jury “should

consider” this along with other injuries. CP at 101. Moreover, the instruction did not direct the

jury to award damages. The instruction did not convey the judge’s personal attitudes towards the

merits of the case or her personal beliefs regarding the evidence. It was not an improper

comment on the evidence. We hold the trial court did not err by giving supplemental instruction

12.

       We affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      _____________________________
                                                                Worswick, J.

_______________________________
 Melnick, J.



_______________________________
 Sutton, A.C.J.


                                                13
