      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LEWIS C. COLLEY and TALENA
COLLEY, husband and wife, and the          No. 68267-9-I
marital community thereof,
                                           DIVISION ONE
                    Appellants,                                       CO




             v.


                                                                      ro
PEACEHEALTH, a not for profit                                         CD

Washington State corporation d/b/a
ST. JOSEPH HOSPITAL and
ST. JOSEPH MEDICAL GROUP,

                    Respondent,            UNPUBLISHED OPINION


JIAN Y. SUN, M.D. and JOHN DOE             FILED: September 3, 2013
SUN, husband and wife and the marital
community thereof; JANICE LUND and
JOHN DOE LUND, husband and wife
and the marital community therefor;
K. HANBURYand JOHN DOE
HANBURY, husband and wife and the
marital community therefor; MELISSA
DYKSTRA and JOHN DOE DYKSTRA,
husband and wife, and the marital
community thereof; NORTHWEST
EMERGENCY PHYSICIANS, INC., a
Washington State for profit corporation;
RALPH WEICHE and JANE DOE
WEICHE, husband and wife, and the
marital community thereof; and JANE
and JOHN DOES 1-10,

                    Defendants.
No. 68267-9-1/2



        Becker, J. — This appeal arises from a jury's defense verdict in a medical

negligence action against PeaceHealth St. Joseph Hospital in Bellingham. The

hospital patient and his wife contend the trial court admitted evidence that was

speculative, irrelevant, and unfairly prejudicial. Finding no basis for granting a

new trial, we affirm.


                                       FACTS


        The hospital patient is appellant Lewis Colley. In the spring of 2006, when

he was around 45 years old, Colley began complaining of recurrent abdominal

pain. On May 4, 2006, Colley's pain was severe. At around 7:45 p.m., he and

his wife, Talena, went to the emergency room at the hospital. The emergency

room physician suspected pancreatitis and prescribed morphine for pain relief.

        Colley's pain did not abate despite repeated doses of morphine and one

dose of dilaudid. Around 2:00 a.m. on May 5, he was admitted to the observation

unit.


        Several months earlier, in January 2006, Colley had been diagnosed with

severe sleep apnea. Sleep apnea is a condition in which a patient stops

breathing for periods of time while asleep. It was uncontested at trial that

morphine tends to suppress respiration and that when patients with sleep apnea

are given morphine, they need to be carefully monitored to ensure they are

getting enough oxygen.

        While Colley was at the hospital on May 4 and 5, Talena observed that he

was having difficulty breathing. She testified that she told several different
No. 68267-9-1/3



hospital employees that Colley suffered from sleep apnea. The sleep apnea

condition was noted in Colley's chart by attending nurse Dawn Hooker at 3:35

a.m. At some point thereafter, Talena made a quick trip home to pick up the

breathing device Colley used while sleeping, called a CPAP (continuous positive

airway pressure) machine.

       Talena testified that she returned to the hospital around 5:40 a.m., found

Colley not breathing, and alerted the nursing staff. A respiratory therapist and a

physician, Dr. Jian Sun, were called. A breathing tube was fed into Colley's

throat, and he was taken to the intensive care unit and hooked up to an oxygen

supply.

       One of Colley's witnesses testified at trial that blood oxygen saturation

becomes "critical" when the percentage falls below 60 percent, while at 80

percent, it generally causes only shortness of breath. A defense expert testified

that 80 percent could be "right on the precipice of a severe deprivation of

oxygen, depending on how frequently the apnea episodes were occurring.

Colley's oxygen saturation level was documented in his medical chart as 97

percent at intake at 2:13 a.m. and 92 percent at 4:11 a.m. There was no further

record of it until 5:45 a.m., soon after he was hooked up to an oxygen supply. At

that point his blood oxygen saturation was noted to be "in the 80s." At 6:04 a.m.,

his oxygen level was 89.5 percent. At 7:10, his oxygen level had risen to 98.5

percent. There was no way to know what his saturation level had been between

4:11 a.m. and 5:45 a.m.
No. 68267-9-1/4



       Five days later, Colley was discharged from the hospital. His abdominal

pain had abated, but Talena observed changes in his personality and mental

state that she attributed to the episode of respiratory failure. Talena testified that

while Colley had been a jolly, happy, sociable, and capable man before the

hospitalization, afterwards he became reclusive, fearful, and angry, he suffered

from severe memory deficits, and he was generally unable to function normally

without close supervision. She testified, "It's like I took my husband to the

hospital and they sent me home with a stranger."

       The Colleys sued the hospital in July 2008, alleging that Colley suffered

permanent brain injury due to the hospital's negligence in dealing with the

episode of respiratory failure. The case came to trial before a jury in November

2011. Trial lasted nine court days, spanned four weeks, and included testimony

by 30 witnesses, most of whom were medical professionals.

       In the plaintiffs case, Dr. Ted Judd, a neuropsychologist, testified that

Colley had a severe short-term memory deficit of a kind routinely associated with

deprivation of oxygen. Dr. Arthur Ginsberg, a neurologist, testified that Colley's

short-term memory deficit was caused, more probably than not, by brain damage

resulting from the loss of oxygen associated with his respiratory failure. He

explained that an injury to the brain that causes a memory deficit is not visible by

imaging such as a computed tomography (CT) scan or a magnetic resonance

imaging (MRI). Dr. Steven Pantilat testified that the standard of care required

continuous pulse oximetry for a patient such as Colley, where a sensor that clips
No. 68267-9-1/5



onto the finger sets off an alarm if the patient's oxygen level falls below a certain

point. Dr. Ralph Weiche, the emergency room physician who discharged Colley

to the observation unit and wrote the morphine order, testified that Nurse Hooker,

Colley's attendant in the observation unit, misinterpreted the order and as a

result gave Colley more morphine than he had intended.

        The hospital responded with testimony that the doses of morphine Colley

received were not excessive, that continuous pulse oximetry was not required to

meet the standard of care, that nurses had monitored Colley adequately by

making regular visits to his room throughout the night, and that the evidence did

not show Colley's blood oxygen levels ever fell to dangerous levels capable of

causing brain damage. The hospital brought out evidence that he had memory

problems predating the incident in the hospital. The January 2006 report

completed by Dr. Francisco Vega in connection with the diagnosis of sleep

apnea stated that Colley "feels that his daytime fatigue has resulted in memory

difficulties."

        Colley suffered from several pre-existing conditions, including not only

obstructive sleep apnea, but also shortness of breath, diabetes, high cholesterol,

hyperglycemia, recurrent toe infections, chronic headaches, post traumatic stress

disorder, obsessive compulsive disorder, anxiety, and depression. Expert

witnesses for the hospital testified that memory loss was consistent with some of

these other conditions. Colley took a number of prescription medications. Earlier

in his life, he had been a heavy drinker. Ten years earlier, he had suffered a
No. 68267-9-1/6



traumatic brain injury in a motor vehicle accident. Two years earlier, he had

stopped working and applied for disability benefits.

       Colley asked the jury to award him some $7,000,000 in damages. The

hospital suggested in argument that if the jury reached the issue of damages, an

appropriate award would be in the range of $100,000. The jury found the

hospital not negligent and did not reach causation or damages.

       This appeal followed.


                    CITATION TO UNPUBLISHED OPINIONS

      As a preliminary matter, we address Colley's objection to the hospital's

citation to two unpublished opinions of this court. The hospital attached the

opinions and discussed them in the brief of respondent. Colley's criticism of this

practice is well-founded. Citing an unpublished opinion is a violation of

Washington court rules. "A party may not cite as an authority an unpublished

opinion of the Court of Appeals." GR 14.1(a).

       There are cogent arguments for permitting citation to unpublished opinions

and many courts do. See Jessie Allen, The Right to Cite: Why Fair and

Accountable Courts Should Abandon No-Citation Rules (Brennan Ctr. for Justice

at N.Y. Univ. Sch. of Law, Judicial Independence Ser., 2005), available at

http://www.brennancenter.Org/sites/default/files/legacv/d/download file 35429.pdf

       But so long as Washington court rules forbid citation of this court's

unpublished opinions, we will not look kindly upon the hospital's facile

explanation that the opinions were cited as "illustrative" and "persuasive," not as

                                            6
No. 68267-9-1/7



"authority." See Johnson v. Allstate Ins. Co.. 126 Wn. App. 510, 519, 108 P.3d

1273 (2005). That rationale swallows the rule. If one party cites an unpublished

opinion, then in fairness the other party must be allowed to explain why the

opinion is neither illustrative nor persuasive, creating a controversy that the

appellate court will find difficult to resolve without citing the unpublished opinion.

       We recently explained, "If a party finds a helpful analysis in an

unpublished opinion, the proper way to present it is to cite the authorities relied

on in the unpublished opinion and show how they apply." State v. Nvsta, 168

Wn. App. 30, 44, 275 P.3d 1162 (2012), review denied. 177 Wn.2d 1008 (2013).

This suggestion, while admittedly a workaround, enables a party to confront the

Court of Appeals with its previous decisions without violating GR 14.1(a).


                              CERTIFICATE OF MERIT


       On the merits, Colley contends that the trial court committed reversible

error by denying three of his motions in limine. This court reviews a thai court's

rulings on motions in limine for abuse of discretion. Gammon v. Clark Eguip.

Co.. 38 Wn. App. 274, 286, 686 P.2d 1102 (1984), afTd, 104 Wn.2d 613, 707

P.2d 685 (1985). If the trial court abuses its discretion, the error will not be

reversible unless the appellant demonstrates prejudice. Portch v. Sommerville.

113Wn. App. 807, 810, 55 P.3d 661 (2002). review denied. 149Wn.2d 1018

(2003).

       When Colley filed suit in 2008, medical negligence actions were subject to

a statutory procedural requirement set forth in RCW 7.70.150. The statute was
No. 68267-9-1/8



intended as an obstacle to meritless actions. At the time of commencing a

medical negligence action, the plaintiff had to file a "certificate of merit" as to

each defendant. The certificate had to be signed by a "health care provider who

meets the qualifications of an expert in the action." RCW 7.70.150(2). Each

certificate was required to contain

       a statement that the person executing the certificate of merit
       believes, based on the information known at the time of executing
       the certificate of merit, that there is a reasonable probability that the
       defendant's conduct did not follow the accepted standard of care
       required to be exercised by the defendant.

RCW 7.70.150(3). Colley filed certificates of merit signed by Nurse Sarah

Covington, a witness on the standard of care for nurses, and Dr. Pantilat. Nurse

Covington's certificate tracked the language of the statute. She stated that she

had "reviewed the information available to me at this time" and believed that

several hospital employees she identified by name and "Jane and John Does 1-

10" had committed malpractice, proximately causing injury to Colley.

       When Colley's case went to trial in November 2011, the requirement to file

a certificate of merit was no longer in effect. The Supreme Court struck it down

in 2009 as an unconstitutional deprivation of due process and access to the

courts. Putman v. Wenatchee Valley Med. Ctr.. P.S.. 166 Wn.2d 974, 979, 216

P.3d 374 (2009).

       Through the discovery process, plaintiffs uncover the evidence
       necessary to pursue their claims. Obtaining the evidence
       necessary to obtain a certificate of merit may not be possible prior
       to discovery, when health care workers can be interviewed and
       procedural manuals reviewed.



                                              8
No. 68267-9-1/9



Putman. 166 Wn.2d at 979.

       By the time of trial, after discovery had been conducted, Nurse Covington

was expected to testify only that Nurse Hooker violated the standard of care.

Nurse Hooker was not among the individuals named in Nurse Covington's

certificate of merit.

       Colley moved in limine to prevent the hospital from using the certificates of

merit to show that Dr. Pantilat and Nurse Covington had changed their opinions.

He argued that such use would be unfair in view of Putman. "Having been forced

to file certificates by an unconstitutional statute, Plaintiffs should not further be

punished by having their witnesses questioned about opinions given at a time

when the evidence provided by discovery was not available." The trial court

denied the motion, accepting the hospital's argument that a certificate of merit

was relevant and admissible under Evidence Rule 613 as the "prior statement" of

a witness. ER 613(a).

       We agree with Colley that the motion in limine should have been granted.

Putman demonstrates that the certificates of merit were unfairly and coercively

extracted from Colley as the unconstitutional price of admission to the court. ER

403 is applicable. The minimal relevance to the credibility of the witnesses was

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury. To put the evidence in its proper context for the

jury would require explaining the statute, the Putman decision, and the rules of

discovery. Such explanations would inevitably be lengthy and distracting.
No. 68267-9-1/10



       Whether the error is reversible, however, is another matter. Portch, 113

Wn. App. at 810. The only certificate the jury heard about was Nurse

Covington's. On direct examination, Nurse Covington criticized Nurse Hookerfor

failing to ask for clarification of an ambiguous morphine order, administering

more morphine than had been prescribed, checking Colley's oxygen saturation

too infrequently, and failing to tell the attending physician about Colley's sleep

apnea, which was significant information about a patient who was receiving

morphine.

       On cross-examination, defense counsel confronted Nurse Covington with

her failure to identify Nurse Hooker in the certificate of merit.

       Q.   Okay. Now, when you first, when you first were asked to
            review records in this case, you were given kind of a binder of
            records?
      A.    Yes, sir.
      Q.    And it was your understanding that that was the complete
            hospital record?
       A.   Yes, sir.
       Q.    And you reviewed all of those documents, correct?
       A.   Yes, sir.
       Q.    And then you, you signed a, a legal document that said your
            opinion; is that correct?
       A.   Yes, sir.

      Q.    In your review of the records, you certainly saw the name of
            Dawn Hooker, correct?
       A.   Yes.
       Q.    It wasn't some scribble that you couldn't read or anything like
            that, correct?
       A.   Correct.

      Q.    So when you signed this document that these individuals were
            acting below the standard of care, you did not include Dawn
            Hooker, correct?
       A.   Correct.
       Q.    And you did not edit this to say, wait a minute, Mr. Leemon,
                                             10
No. 68267-9-1/11



              let me include Dawn Hooker, correct?
         A.   Correct.

This was the scope of the questions to Nurse Covington about the certificate of

merit.


         Defense counsel also cross-examined Nurse Covington to elicit her

agreement that in an observation unit, failing to use a continuous pulse oximetry

device did not violate the standard of care; and that Colley's chart indicated that

Nurse Hooker did not learn about his sleep apnea condition until 3:35 a.m.,

whereas the last dose of morphine had been given at 3:20 a.m. Counsel brought

out that Nurse Covington had not worked in a critical care unit in a hospital

setting since 1988 and had no experience working in a hospital observation unit

or emergency room. In closing, the hospital made no mention of Nurse

Covington, other than to argue in passing that her credentials and hospital

experience were less impressive than those of the nurse who testified as an

expert witness for the hospital.

         Nurse Covington was a relatively peripheral witness. It was undisputed

that Nurse Hooker misread the orders for morphine and gave Colley more than

the prescribing physician intended. And the plaintiffs case did not depend on

Nurse Covington's opinion to show that Colley's oxygen saturation level should

have been monitored more continuously. This opinion was more authoritatively

rendered by the physicians who testified on the standard of care. In the context

of a nine-day trial, forcing Nurse Covington to admit that Nurse Hooker's name

was not mentioned in the certificate of merit was a point too obscure to create


                                            11
No. 68267-9-1/12



more than a pinprick of prejudice.

       We conclude that the trial court erred by allowing the hospital to impeach

Nurse Covington with the certificate of merit, but the error does not require reversal


                    DEFENSE WITNESSES ON CAUSATION

       Colley moved in limine to exclude three experts who had been identified

as defense witnesses on causation but who, according to Colley, had no opinions

on causation. The court denied the motion. All three experts testified at trial.

       On appeal, Colley argues that the three experts presented an

"overwhelming cacophony" of irrelevant and speculative evidence, insinuating

that he was brain damaged before he arrived at the hospital.

       The hospital points out that each expert was offered as a witness on

causation and the jury did not reach the issue of causation. This does not,

however, necessarily mean that their testimony could not have been prejudicial.

In a personal injury trial, it is not always possible to keep the issues of breach

and causation compartmentalized. Even if the witnesses were examined only

about causation, their opinions could have tainted the jury's consideration of the

negligence question if they were irrelevant and unfairly put Colley in a bad light.

Colley is entitled to consideration of his arguments about these witnesses.




                                             12
No. 68267-9-1/13



       Dr. Pascualv

       Dr. Ralph Pascualy, M.D., a psychiatrist and expert in sleep apnea and

sleep medicine, identified several factors besides oxygen deprivation that could

have caused Colley to experience memory loss, including his severe sleep

apnea, irregular use of the CPAP machine, diabetes, and past history of heavy

drinking. He testified that because there was no evidence of Colley's oxygen

saturation levels between 4:11 a.m. and 5:45 a.m., it was not possible to say

whether the hospital event was severe enough to cause memory problems.

       Colley argues that Dr. Pascualy's testimony should not have been

admitted unless he was prepared to say either that respiratory failure was not the

cause of Colley's injury or that something else was the cause.

       It is the plaintiff's burden in a medical negligence action to prove the

statutory elements, including breach and causation. RCW 7.70.040; Berger v.

Sonneland. 144 Wn.2d 91, 111, 26 P.3d 257 (2001). Witnesses who offer an

opinion to prove medical causation must speak in terms of probability, not mere

possibility. Miller v. Staton. 58 Wn.2d 879, 885-86, 365 P.2d 333 (1961). The

defendant does not have the burden to prove causation or lack of causation. Nor

is the defendant obligated to agree or assume that the plaintiff is injured.

       Beginning with the premise that there was no other explanation for

Colley's sudden loss of short-term memory, expert witnesses in the plaintiff's

case deduced that the oxygen in his blood must have fallen to a critically low

level during the hour and 30-minute period when it was not recorded. Dr.



                                             13
No. 68267-9-1/14



Pascualy's testimony attacked the premise. He said there could be other

explanations for memory loss and it was not possible to infer with certainty that

Colley experienced serious oxygen deprivation while at the hospital. Dr.

Pascualy's experience was adequate foundation for his opinion.

       Colley cites Washington Irrigation & Development Company v. Sherman.

106 Wn.2d 685, 724 P.2d 997 (1986). The case involved a claim of lower back

pain caused by industrial injury. The court held it was error for the opposing

party to insinuate that two later auto collisions were a superseding cause of the

lower back pain without proof that the collisions actually did aggravate the injury.

This is not a similar case. Dr. Pascualy was not trying to establish a superseding

cause. His testimony was offered to show that Colley lacked proof of causation.

His testimony was properly admitted.

       Dr. Stimac


       In March 2006 Colley complained to his primary care provider of

increasingly severe headaches. His provider referred him for a CT scan of his

brain. In June 2006, the hospital performed an MRI test of Colley's brain when

he complained of continued headaches as well as memory and sensory

problems. These two examinations provided images of Colley's brain just before

and just after the incident at the hospital. The results of the two examinations

were discussed during the plaintiff's case by Dr. Ginsberg, who testified that one

can have an injury to the brain that causes short-term memory loss, yet is not

visible by imaging.



                                            14
No. 68267-9-1/15



       The hospital presented Dr. Gary Stimac, a neuroradiologist, to interpret

and compare the images. Dr. Stimac testified that as of March 2006, Colley's

brain already showed signs of damage—a generally "shrunken" appearance and

"a diffuse loss of brain substance"—and it did not show any visible differences by

June 2006. Dr. Stimac agreed it was entirely possible that Colley had suffered a

mental impairment such as memory loss in May 2006 which would not show up

on an MRI.


       Colley contends Dr. Stimac's testimony was irrelevant because he had no

opinion about what was causing the memory loss. Again, to be relevant, it was

not necessary for Dr. Stimac to render an affirmative opinion as to the cause of

Colley's alleged impairment. It was relevant for the jury to hear that the visible

condition of Colley's brain was consistent with his previous medical issues and

there was no image consistent with an acute insult to the brain such as extended

oxygen deprivation.

       Dr. Ellsworth


       Just before Colley was admitted to the observation unit at 2:00 a.m., he

was given 8 milligrams of morphine to relieve his abdominal pain. Dr. Weiche,

the emergency room physician, left orders that Colley could receive up to 8 more

milligrams in the next four hours depending on his level of pain. Over the next

hour and a half, Nurse Hooker, who misunderstood the order, administered 10

milligrams. Colley claimed that the misreading of the orders was one of the

negligent acts that ultimately led to his respiratory failure.


                                              15
No. 68267-9-1/16



       Dr. Allan Ellsworth, a pharmacology expert called by the hospital, testified

that 10 milligrams of morphine was within the range of reasonable therapeutic

doses under the circumstances. He explained the rate at which morphine

typically cycles through the body and compared this information to when Colley

received his morphine doses and when he began to suffer breathing troubles.

Defense counsel referred to Dr. Ellsworth's testimony in closing, arguing that the

administration often milligrams was not negligent because "we had plenty of

evidence that ten milligrams is not outside the normal range."

       Colley contends he was not specifically claiming he had suffered an

overdose of morphine and therefore the discussion about the range of

acceptable morphine dosage was irrelevant. His argument is unconvincing.

There would be no point to his allegation that Nurse Hooker misread the dosage

instructions unless her carelessness resulted in an overdose.

       Colley suggests that Dr. Ellsworth's opinions were flawed because he

based them on content gleaned from a web site, he used data derived from

patients who had received morphine in a different manner than Colley, and he

used data derived from adults who were not obese, even though narcotics tend

to cycle more slowly through a heavier body such as Colley's. Expert testimony

need not be flawless to be admissible. These objections go to the weight of Dr.

Ellsworth's testimony, not its admissibility.

       Contrary to Colley's argument, allowing the three experts to testify was not

contrary to Stedman v. Cooper. 172 Wn. App. 9, 292 P.3d 764 (2012). In


                                                16
No. 68267-9-1/17



Stedman. the plaintiff alleged that she had sustained injuries in a car crash. A

biomechanical engineer offered the opinion that the car crash could not have

caused the injuries, even while disclaiming any intention of offering an opinion

about whether the plaintiffs injuries were caused by the crash. Stedman. 172

Wn. App. at 20. We reasoned that a trial court could find that such testimony

was "more likely to be misleading than helpful" and held the trial court did not

abuse its discretion by excluding it. Stedman. 172 Wn. App. at 20-21. Here, the

experts stayed within their expertise and did not speculate. The trial court did not

abuse its discretion by allowing them to testify.

       Colley presented expert testimony tending to prove that the hospital's

negligence caused him grave harm. The expert witnesses for the hospital

offered competing opinions tending to deprive Colley's proof of the persuasive

power necessary to cross the 50 percent threshold. Colley cross-examined each

defense expert to show the jury how poorly formed and unreliable he believed

their opinions were. The record does not sustain Colley's argument that the

testimony the witnesses were allowed to give was improper.


                          PREVIOUS ALCOHOL ABUSE

       Colley's medical records included examinations in 2004 and 2005, during

which he admitted that until about 2002, he "had been drinking beer like a fish."

Colley's wife, who first met him in 2002, testified on direct examination that

Colley admitted drinking heavily in his past, but she had never known him to

have a drinking problem, and he took his last drink on the night of their wedding.

                                             17
No. 68267-9-1/18



       Colley moved in limine under Evidence Rules 403 and 404(b) to exclude

reference to his history of alcohol consumption. The court denied the motion.

       At trial, witnesses for the hospital referred to Colley's past history of

alcohol abuse in connection with memory loss and tolerance to morphine. Dr.

Stimac said it helped to explain why Colley's brain showed a "shrunken"

appearance both before and after the incident. Dr. Kristoffer Rhoads testified

that alcohol can affect the frontal lobes of the brain and affect memory, attention,

and concentration, but that after six months of sobriety, any further damage

would be "negligible." Dr. Pascualy referred to Colley's admission during

examinations that he used to "drink like a fish." The hospital inquired about

Colley's former alcoholism on cross-examination of Colley's witness Dr. Ted

Judd, who testified that former alcohol abuse can cause a mild impairment to

attention and concentration. In closing argument, Colley's counsel attempted to

minimize the effect of the hospital's multiple references to Colley's former alcohol

use. He said they were an attempt to suggest "that these people weren't worth

very much to begin with and how much harm could we really cause them."

       Evidence of past alcohol abuse is potentially quite prejudicial, as this court

recognized in Kramer v. Jl Case Manufacturing Company. 62 Wn. App. 544, 815

P.2d 798 (1991). In Kramer, the plaintiff brought a product liability action against

the manufacturer of a backhoe that slid into him on a jobsite. The trial court

permitted the defendant to elicit evidence of alcohol abuse to support an

argument that substance abuse reduces life expectancy and diminishes


                                             18
No. 68267-9-1/19



employment prospects. Several witnesses testified that the plaintiff had a

serious, current addiction to alcohol and that he regularly used marijuana.

Kramer. 62 Wn. App. at 557. This court held such evidence should have been

excluded because there was no proof that substance abuse had actually affected

the plaintiffs life expectancy or his employment prospects.

       Colley contends that similarly here, it was error to admit the evidence

without proof of its relevance to some larger point. But here, the record does

demonstrate the relevance of Colley's history of alcohol use. And unlike in

Kramer, the hospital did not depict Colley as having a current alcohol problem.

The undisputed testimony was that he was currently a regular church goer and

fully abstinent. While prejudice always clings to alcohol abuse to some degree,

the trial court could reasonably conclude that the evidence of Colley's heavy

consumption of alcohol in the past had probative value that outweighed the

prejudice.

       In summary, Colley has failed to show that the trial court's denial of his

motions in limine deprived him of a fair trial.

       Affirmed.




                                              19
No. 68267-9-1/20


                        ckeg
WE CONCUR:




   yt^^-,/r.CT     Ctf^dste*.,




                   20
