                                                                           FILED
                                                                         MAY 4, 2017
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

AMANDA PITTS (nee/aka AMANDA                   )
COMPTON, nee/aka AMANDA                        )        No. 32512-1-111
CRUTCHFIELD) and PAUL PITTS,                   )
individually; and AMANDA PITTS as              )
Personal Representative of the ESTATE          )
OF TAYLOR PITTS, and on behalf of all          )
statutory claimants and beneficiaries,         )        UNPUBLISHED OPINION
                                               )
                      Appellants,              )
                                               )
       V.                                      )
                                               )
INLAND IMAGING, L.L.C., a                      )
Washington business entity and healthcare      )
provider; INLAND IMAGING                       )
ASSOCIATES, P.S., a Washington                 )
business entity,                               )
                                               )
                      Respondents.             )

       KORSMO, J. -    Amanda and Paul Pitts (collectively Pitts) appeal from an adverse

jury verdict and the trial court's decision to grant partial summary judgment on one of

their claims. As they have identified neither error nor abuse of discretion, we affirm.

                                          FACTS

       This case arose from the death in utero of one of the twin daughters being carried

by Amanda Pitts in 2007-2008. Nearly a decade later, this tragic loss is the basis for the
No. 32512-1-111
Pitts, et al. v. Inland Imaging, LLC, et al.


current litigation. This appeal revolves around the actions of defendant Inland Imaging in

its reading of sonograms taken during the pregnancy.

       Inland sonographers performed ultrasound examinations on Ms. Pitts in 2007 on

August 10, August 27, October 4, November 5, and December 7. An Inland radiologist

then would read the sonograms and report to the obstetrician. Upon discovering that the

twins were both girls, the Pitts named them Samantha and Taylor.

       The radiologists reported that the findings of the first two ultrasound "are

consistent with a dichorionic diamniotic pregnancy." Clerk's Papers (CP) at 197-198.

On the August 27 ultrasound, the radiologist noted they read a "twin peak sign" (also

called the lambda sign, based on its visual resemblance to the Greek A). CP at 225. This

sign, only seen early in pregnancy, is an indication that the two fetuses are each in their

own amniotic sac, with their own chorionic membrane (meaning each fetus accesses their

own placenta). 1 Shown on the left of the diagram below, this is considered the safest

configuration for twins in utero as the completely separate amniotic sacs and two discrete

chorions act as barrier membranes that prevent umbilical cord tangling or one twin

interfering with the development of the other.




       1
        This technical information is synthesized from both parties' expert testimony,
primarily Drs. Filly (Report of Proceedings (RP) (February 19, 2014) at 454-497), and
Patten (RP (February 10, 2014) at 195-295).

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                DICHORIONIC                                 MONOCHORIONIC

Placenta                                                     Placenta




Amnion                                                       Amnion
Chorion                                                      Chorion


                  Dichorionic              Monochorionic                    Monochorionic
                  Diamnionic                Diamnionic                      Monoamnionic



           Monochorionic twins, however, share the same placenta and have intermingled

circulatory systems, which can lead to additional complications such as twin-to-twin

transfusion syndrome (TTTS) and intrauterine growth restriction (IUGR). TTTS is a

condition in which the blood flows unequally between monochorionic twins that share a

placenta, causing one twin to receive too much blood, and the other twin to receive too

little, resulting in damage to both. IUGR occurs when there is unequal placental sharing

between monochorionic twins that leads to the suboptimal growth of one twin, and is

colloquially referred to as a "stuck twin" diagnosis.

           An ultrasound on January 17, 2008, indicated that Taylor Pitts had died in utero.

Ms. Pitts had an emergency cesarean section that same day and safely delivered

Samantha. The obstetrician, Dr. Ronald Hardy, reported the following:

           Twin A [Samantha]: baby A delivered, and there was no evidence of any
           fluid or even an intact [amniotic] sac around baby B [Taylor]. The sacs
           seemed to be communicating and acting as if 1 sac, though there seemed to
           be [chorionic] membranes between and wrapped around baby B.


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       Again, there was no clear sac .... Baby A's cord, the healthy-appearing,
       normal cord, was wrapped around Baby B's neck. Baby B's cord, then was
       wrapped around Baby A's cord and twisted very tightly, almost with a
       bandlike tightness, forming a loop around Baby A's cord so that Baby A's
       cord could slide up and down inside this loop and then Baby B's cord was
       tightly interwoven.

       The placentas were delivered. They were connected with 2 separate cord
       plates. The cords seemed to traverse between the 2 membranes-it was
       quite unusual appearing--suggestive of a possible incomplete formation of
       diamniotic sacs, or potentially early on the babies could have intermixed
       and intertwined with each other.

CP at 232-233. 2

       The Pitts sued Inland, alleging negligence that led to Taylor's death and asserting

additional causes of action. One negligence theory that later came to the fore was a lost

chance of a better outcome claim. The issue arose when one of the experts for the

plaintiffs testified during a deposition that the twins had a 90 percent chance of a better

outcome if their condition had been appropriately diagnosed by Inland following one of

the early ultrasounds. Inland moved for summary judgment on the lost chance theory,

arguing that neither the evidence nor the law supported the claim. The trial court took the

matter under advisement in order to review the authorities.

       The trial court ultimately granted the motion by written memorandum, relying on

this court's then recent decision in Estate of Dormaier v. Columbia Basin Anesthesia,


       2
        Pathologist Dr. Wayne Riches analyzed the placenta after delivery and
concluded that the pregnancy likely was monochorionic diamniotic.

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PLLC, 177 Wn. App. 828, 313 P.3d 431 (2013). The case eventually proceeded to jury

trial before the Honorable Kathleen O'Connor in February 2014. The bulk of the issues

argued on appeal occurred during trial; other claims were related to discovery issues.

The facts relating to those contentions will be addressed in conjunction with our

discussion of the issues.

       The experts agreed at trial that the umbilical cords had become tangled, leading to

Taylor Pitts' death, but disagreed on how that came about. The plaintiffs' experts

contended that the twins had always been within the same chorion and that Inland had

failed to observe that fact, while the defense experts had other competing theories. The

jury returned a verdict in favor of Inland, finding that it was not negligent. The Pitts then

timely appealed to this court. The case was submitted to a panel without argument.

                                        ARGUMENT

       Appellants raise six claims, five of which are related to events occurring during

trial. We first address the summary judgment ruling on the lost chance claim before

turning to the remaining claims.

       Lost Chance

       The trial court ruled that the lost chance theory was inapplicable to the facts of this

case because there was a 90 percent chance of survival if the treating physician had been

properly advised. CP at 585. In that circumstance, the "lost chance" exceeded 50

percent, a figure this court has previously concluded was actionable instead under

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traditional tort causation principles. Although we maintain that position and affirm the

trial court, there is an even more fundamental reason why the claim lacks merit. It was

the alleged negligence of the defendants, not the underlying medical condition, which

caused the injury. In those circumstances, loss of a chance does not apply. We first

consider the bases for the lost chance doctrine before considering its application to this

case.

        An appellate court will review a summary judgment ruling de novo and consider

the same evidence heard by the trial court, viewing that evidence in a light most favorable

to the party responding to the summary judgment. Lybbert v. Grant County, 141 Wn.2d

29, 34, 1 P.3d 1124 (2000). If there is no genuine issue of material fact, summary

judgment will be granted if the moving party is entitled to judgment as a matter of law.

Id. "A defendant in a civil action is entitled to summary judgment if he can show that

there is an absence or insufficiency of evidence supporting an element that is essential to

the plaintiff's claim." Tacoma Auto Mall, Inc. v. Nissan N Am., Inc., 169 Wn. App. 111,

118,279 P.3d 487 (2012).

        Washington's lost chance case law is developing rapidly. The doctrine was

initially discussed in the multiple opinions, none of which garnered a majority view,

found in Herskovits v. Group Health Coop. of Puget Sound, 99 Wn.2d 609, 664 P.2d 474

(1983). In Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011), the court

recognized loss of chance as distinct injury. Id. at 857. The Mohr court observed that a

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loss of chance for a better outcome would be calculated based on expert testimony of

"data obtained and analyzed scientifically ... as part of the repertoire of diagnosis and

treatment, as applied to the specific facts of the plaintiffs case." Id. at 857-858 (internal

quotation marks omitted).

       The court found that it was necessary to ensure a plaintiff could bring a loss of

chance claim as even "the loss of a less than even chance is a Joss worthy of redress." Id.

at 852 (internal quotation marks omitted). "To decide otherwise would be a blanket

release from liability for doctors and hospitals any time there was less than a 50 percent

chance of survival, regardless of how flagrant the negligence." Id. at 851 (internal

quotation marks omitted) (quoting Herskovits, 99 Wn.2d at 614).

       Lost chance claims can be divided into two categories: lost chance of survival and

lost chance of a better outcome. Christian v. Tohmeh, 191 Wn. App. 709, 729-730, 366

P.3d 16 (2015), review denied, 185 Wn.2d 1035, 377 P.3d 744 (2016). In a lost chance

of survival claim, such as Herskovits, a patient dies from a preexisting condition and

would likely have died from the condition, even without the negligence of the health care

provider. Even so, the negligence reduces the patient's chances of surviving the

condition. Rash v. Providence Health & Servs., 183 Wn. App. 612,630,334 P.3d 1154

(2014), review denied, 182 Wn.2d 1028, 347 P.3d 459 (2015). In a lost chance of a better

outcome case, the patient survives but has been harmed by the underlying medical

condition. The question presented was whether the patient's opportunity to have a better

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result was reduced in some manner due to professional negligence. Id. at 631. That was

the issue in Mohr. The plaintiff had suffered a severe stroke, but her chance of a better

recovery was allegedly lessened by intervening medic~} negligence. 172 Wn.2d at 857.

The court concluded that the loss of chance of a better outcome was not limited to

wrongful death actions. Id.

       This court considered the loss of a chance doctrine at some length in Dormaier, a

case where an embolism brought about a fatal heart attack during surgery to repair a

fractured elbow. 177 Wn. App. at 837-838. There we recognized that loss of a chance is

not a separate cause of action within the statutory framework of a medical malpractice

wrongful death claim. Id. at 855. We also recognized that lost chance "is fundamentally

an alternative manner of proving wrongful death causation, available solely where the

defendant's negligence reduced the decedent's chance of survival by less than or equal to

50 percent." Id. at 854-855 (emphasis added). Put in other terms, Dormaier recognized

that a lost chance claim only applies when the plaintiff already has no more than a 50

percent chance of having a successful recovery or survival from the underlying problem.

If there is a greater than 50 percent chance, traditional tort causation principles apply and

the negligence, if proven, is the cause of injury. If the chance of a successful outcome

from the medical condition is no better than 50 percent, then the question presented is

whether the medical negligence somehow reduced that opportunity even more. In those

circumstances, the alternative causation approach is used.

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       With these principles in mind, it is clear that the lost chance claim in this case fails

for two reasons. First, appellants based their lost chance of survival claim on the alleged

negligence of Inland. The Washington Supreme Court's decision in Volk v. Demeerleer,

187 Wn.2d 241,279, 386 P.3d 254 (2016), authoritatively rejected that approach. There

is no lost chance claim when the injury is caused by medical negligence. In Volk, the

plaintiff (personal representative of the deceased), as here, argued that professional

negligence both (1) caused the loss of plaintiffs life and (2) reduced the chance of

plaintiffs survival. Plaintiff contended that the lost chance doctrine applied both to the

lost opportunity to survive and as a substitute for actual "but for" causation. Id. at 278-

279. The court disagreed:

       This argument fails under either approach because the loss of a chance
       doctrine is inapplicable if the plaintiff is alleging that the defendant's
       negligence actually caused the unfavorable outcome--the tortfeasors would
       then be responsible for the actual outcome, not for the lost chance.

Id. at 279. 3 For that same reason, the Pitts' claim fails here.

       A second reason that this claim fails is that the lost chance substituted causation

analysis that we discussed in Dormaier does not apply when the negligence reduces the

chances of survival by greater than 50 percent. There we held that when



       3
         An even more recent decision is to the same effect. Dunnington v. Virginia
Mason Med. Ctr., 187 Wn.2d 629, 637, 389 P.3d 498 (2017) ("A key distinction of loss
of chance cases is that regardless of the negligence, the ultimate injury is likely to
occur.").    ,

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       the defendant's negligence reduced the decedent's chance of survival by less
       than or equal to 50 percent, the loss of a chance is the injury ... but where
       the defendant's negligence reduced the decedent's chance of survival by
       greater than 50 percent, as a matter of law, the death remains the injury ....
       Thus, a plaintiff may not argue the lost chance doctrine where the
       defendant's negligence reduced the decedent's chance of survival by greater
       than 50 percent.

177 Wn. App. at 851. Judge O'Connor correctly applied Dormaier to these facts.

       In summary, here, as stated in Volk, lost chance was inapplicable because

plaintiffs alleged that it was the negligence of Inland, rather than the underlying medical

condition, that caused the death of Taylor Pitts. Alternatively, even if a lost chance claim

otherwise had been proper, it still failed from the substituted statistical causation

perspective of Dormaier because there was no evidence that the plaintiffs survival

chance was reduced by less than 50 percent. Instead, she allegedly lost a 90 percent

chance of surviving. There was no lost chance of any kind. The alleged negligence, not

the lost chance of some better outcome, was the actionable theory of the case. There was

no need to substitute causation theories when plaintiffs evidence showed a 90 percent

chance of a favorable result (survival) but for the negligence.

       The trial court correctly realized that lost chance was not the true theory of this

action. The trial court did not err in granting summary judgment on this issue.

       Rebuttal Witnesses

       Appellants contend that the trial court erred in excluding testimony of two of their

experts as a discovery sanction without first undertaking the analysis required by Burnet

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v. Spokane Ambulance, 131 Wn.2d 484,933 P.2d 1036 (1997). There was no discovery

sanction at issue in either instance and the record reveals no abuse of the court's

management authority.

       The trial court has "considerable discretion" in allowing a party to develop and

present evidence at trial. In re Marriage of Zigler & Sidwell, 154 Wn. App. 803, 814,

226 P .3d 202 (2010). The court similarly has great discretion in the way it manages its

courtroom, ranging from controlling the conduct of the parties to the setting of the

calendar. Id. at 814-816 (managing courtroom); State ex rel. Sperry v. Super. Ct.for

Walla Walla County, 41 Wn.2d 670,671,251 P.2d 164 (1952) (managing calendar).

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Discretion also is

abused when the court uses an incorrect legal standard. State v. Rundquist, 79 Wn. App.

786, 793, 905 P.2d 922 (1995).

       A discovery sanction that would exclude evidence that affects a party's ability to

present its case amounts to a severe sanction. In such instances, courts first must

consider the Burnet factors before imposing such sanctions. Keck v. Collins, 184 Wn.2d

358, 368, 357 P.3d 1080 (2015). Under Burnet, before imposing discovery sanctions

such as dismissal, default, or exclusion of testimony, the court must presume that a late-

disclosed witness will be allowed to testify absent finding (1) the opposing party's willful

violation of the court's discovery orders, (2) the violation substantially prejudiced the

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opposing party, and (3) consider, on the record, if lesser sanctions would be insufficient.

Burnet, 131 Wn.2d at 494.

       Here, the trial court ruled that proposed witness Professor Carolyn Coffin, who

was expected to testify about the standard of care for sonographers, could not testify. It

also ruled that Dr. Harris Finberg, disclosed as a witness after the discovery deadline due

to the depositions of defense witnesses occurring late in the process, would be limited to

providing rebuttal testimony. The Pitts claim that the court excluded these two witnesses

as a sanction for late disclosure of their names and erred by doing so without considering

the Burnet standard on the record.

       However, that is not what happened. Both Coffin and Finberg were identified as

rebuttal witnesses in court at a hearing held January 17, 2014; each had been identified as

new witnesses on December 30, 2013. CP at 497, 982; RP at 103, 105-106. Inland

moved to exclude the witnesses for late disclosure, citing to Burnet. CP at 497-504. The

trial court denied the motion, indicating that the two would be able to testify as rebuttal

witnesses, with the subject matter of their testimony to be determined later. CP at 949.

Subsequently, the sonographers were dismissed as defendants at the end of the Pitts'

case-in-chief, with the court ruling that no expert testimony had been presented

concerning the standard of care by a sonographer. Accordingly, Professor Coffin no

longer had any testimony to rebut since no evidence was now needed concerning the

sonographers' standard of care.

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       After testimony developed at trial, the court ruled that Dr. Finberg would not be

able to testify concerning either IUGR or TTTS because neither topic came up during the

defense case. The defense experts had testified that the membrane around Taylor had

unexpectedly ruptured, an event that could not have been foreseen. The trial court

authorized Dr. Finberg to address that topic.

       Thus, Dr. Finberg was not excluded from testifying as a sanction for the late

disclosure of his identity. Instead, his testimony was limited to its stated

purpose-rebuttal. He was not permitted to testify about topics that had not been raised

by the defense since there would be nothing to rebut in that instance. The trial court had

very tenable reasons for limiting Dr. Finberg to proper rebuttal testimony.

       The court did not abuse its discretion in excluding Professor Coffin's testimony

and limiting the scope of Dr. Finberg's testimony. There was no error.

       Dr. Finberg Video Testimony

       The trial court authorized Dr. Finberg to testify by videoconferencing so that the

jury could see and hear the testimony. The last witness in the trial, Dr. Finberg, was to

testify at 1:30 p.m. on February 19, 2014. Judge O'Connor directed counsel to be present

on the 19th no later than 10:00 a.m. to set the equipment up and confirm it was working

correctly.

       By noon, the equipment was not set up properly. The judicial assistant advised

counsel that the room would be locked at noon for the lunch hour and that Dr. Finberg

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would not be testifying since the equipment was not ready. When court reconvened at

1:30 p.m., the Pitts did not object to the inability to use Dr. Finberg. The case proceeded

to closing argument.

       After the verdict, the plaintiffs moved for a new trial on several grounds, including

the inability to call Dr. Finberg. The court denied the motion. With respect to Finberg's

testimony, the court stated:

               Finally I do want to say a couple of things about this situation that
       occurred with Dr. Finberg. As counsel is both aware, we had set out a time
       schedule. . . . I knew that there were going to be issues with the testimony
       because of the physical things involved. All of the experts were testifying
       looking at sonograms, some were fixed, some were moving, and that was a
       major part of all the experts' testimony. So if the jury was going to
       understand anything Dr. Finberg was going to say, they had to have that
       ability to both see him and see what he was looking at so that that
       testimony would be helpful for them.
               As a consequence, and I think the record should reflect, that we
       stood down. I stood down. We were done. I gave the defendant-{)r
       excuse me, the plaintiff, that morning, half a day, half a trial day, where the
       jury was not told to come in until the afternoon to get this set up. I also set
       that I wanted the call to go through and we to know by 10:00 whether it
       was going to work or not because Mr. Riccelli was using his own
       equipment. He did not have anybody assisting him. I thought this would
       be somewhat of a difficult technical issue. I recall that my judicial assistant
       came in and said they are having some problems .... It was never going to
       be an easy thing to get him there by audio/visual but it just did not work.
       Comes 10:00 it hadn't even been set up, and by noon it still wasn't
       working. I am satisfied that we gave the plaintiff ample opportunity, we
       gave them a whole half a day of trial to get this in place and it did not
       happen.

RP at 661-663.

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       A party aggrieved by a trial irregularity "must request appropriate court action to

obviate the prejudice before the case is submitted to the jury." Spratt v. Davidson, 1 Wn.

App. 523,526,463 P.2d 179 (1969). "Trials must be fair but they need not be perfect."

Zigler, 154 Wn. App. at 815. Trial courts have wide discretion to "conduct trials fairly,

expeditiously, and impartially." Id. Under RAP 10.3(a)(6), a reviewing court need not

consider arguments not supported by any citation of authority. In re Marriage of Fahey,

164 Wn. App. 42, 59,262 P.3d 128 (2011).

       Here, the Pitts did not challenge the decision to not wait any longer for the rebuttal

testimony at a time when the trial court could have done something about it. They also

have not presented any argument that the trial court abused its discretion in ruling as it

did. Accordingly, we could simply conclude that this issue is waived and/or abandoned.

       However, the argument also is without merit. 4 The trial court gave ample time for

the plaintiffs to set up the equipment in order to permit Dr. Finberg to testify. Having

already set aside a whole morning from the trial schedule to permit the equipment set up,

we agree that the trial court had more than accommodated the plaintiffs in this regard,

particularly when there was no request for additional time or any hint that the technical

problems could be rapidly resolved.




       4
        In light of the fact that Dr. Fenberg did not testify, we need not decide whether
the court erred in limiting the scope of his rebuttal testimony.
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       The court had tenable reasons for ruling as it did. There was no abuse of the trial

court's management authority.

       Defense Expert Testimony

       Next, the Pitts argue that the trial court abused its discretion in permitting three

defense witnesses to testify concerning causation. The trial court having exercised its

discretion in winnowing down the number of experts each side could call prior to trial,

rulings that are not challenged on appeal, we see no abuse of discretion in permitting the

witnesses who did testify to do so.

       Again, well settled standards govern our review of this issue. To be admissible

under ER 702, expert witness testimony must be relevant and helpful to the trier of fact.

Stedman v. Cooper, 172 Wn. App. 9, 16, 292 P.3d 764 (2012). Where there is no basis

for the expert opinion other than theoretical speculation, the court should exercise its

discretion and exclude it. Queen City Farms, Inc. v. Cent. Nat. Ins. Co. of Omaha, 126

Wn.2d 50, 103, 882 P.2d 703 (1994). Also, a party may not appeal an error based on a

ruling that admits evidence unless a timely objection or motion to strike is made. ER

103(a)(l); Faust v. Albertson,167 Wn.2d 531,547,222 P.3d 1208 (2009). A party who

timely objected, however, may only assign error in the appellate court on the specific

ground of the evidentiary objection made at trial. Faust, 167 Wn.2d at 547.
                                                                                              I
       With respect to the testimony of Dr. Callen, whom the Pitts accuse of exceeding        I
the scope of his permitted testimony, there was no objection to that testimony. If they       I
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believed his testimony, which they elicited on cross-examination, was improper, their

remedy was to seek immediate relief from the trial court. Having not objected at trial or

moved to strike the testimony, they may not ask this court to grant relief for an

unpreserved error claim.

       Dr. Filly testified that scar tissue (synechiae) may have appeared to the Inland

radiologists as a twin peak sign and confused them concerning the nature of the

pregnancy. On cross-examination, Dr. Filly discussed the unusual nature and

unlikelihood of his synechiae theory during his cross-examination. RP at 412. Though

there had been no physical examination of Amanda Pitts to confirm the theory, the

testimony was not completely unhelpful to the jury. It underscored ( 1) the unusual nature

of this pregnancy and its outcome, supporting Inland's defense that it followed the

standard of care, and (2) that the Pitts had no superior theory of causation to one so

wholly speculative as to be impracticable. Because the testimony had some value to the

jury, the trial court did not err in permitting it.

       There were tenable grounds for admission of the testimony. The trial court did not

abuse its considerable discretion in this area.

       Proposed Voir Dire of Dr. D 'Alton

       The Pitts next complain that the trial court erred in refusing to allow them to voir

dire Dr. D' Alton about the potential for IUGR and TTTS. Dr. D' Alton had stated during

her deposition that neither condition was present during the pregnancy. The defense did

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not develop the topics during her trial testimony. The plaintiffs sought to voir dire the

witness on the topics in order to set a foundation for Dr. Finberg to "rebut" Dr. D' Alton

and suggest these conditions as possible causes for the death of Taylor.

       The trial court declined to permit the voir dire because it was not a proper subject

of inquiry at that point. Dr. D' Alton had not relied upon either IUGR or TTTS, nor had

the Pitts developed either topic during their case-in-chief. This was, as the defense

argued, an attempt to set a foundation for Dr. Finberg to develop a new theory of liability

during rebuttal in violation of the pretrial rulings and Finberg's status as a rebuttal

witness. These were very tenable reasons for rejecting the voir dire.

       Once again, there was no abuse of the trial court's evidentiary and trial

management authority.

       Cross-Examination of Dr. Patten

       Finally, the Pitts also contend the trial court erred in allowing Inland to cross-

examine their expert radiologist, Dr. Patten, concerning the twin peak sign, a topic

admittedly outside the scope of his expertise. Dr. Patten did not discuss the topic during

his testimony describing the standard of care for radiologists interpreting sonograms. No

objection was raised until the latter stages of the cross-examination, when the plaintiffs

claimed the topic was beyond the scope of the doctor's expertise. The trial court

overruled the objection, and Dr. Patten testified that while he was not an expert because

he did not write on the topic, he knew how to use the twin peak sign in his work.

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       ER 611 (b) limits the scope of cross-examination to "the subject matter of the

direct examination and matters affecting the credibility of the witness," but also permits

the trial court discretionary authority to allow "inquiry into additional matters as if on

direct examination." Accordingly, courts recognize that "the scope of cross examination

is within the broad discretion of the trial court and will not be overturned on appeal

absent an abuse of discretion." Miller v. Peterson, 42 Wn. App. 822, 827, 714 P.2d 695

(1986).

       Here, Dr. Patten had discussed the twin peak sign at some length before the

plaintiffs claimed he was addressing a topic beyond his expertise. At that point they had

waived any objection to the topic. However, even if the belated objection preserved the

issue, there was no error. Inquiry into an expert's knowledge base is permitted by ER

611 (b) (and ER 703 ). Dr. Patten's earlier testimony discussed the standard of care in

determining the chorionicity of a twin pregnancy by assessing the thickness of the

chorion membrane, a measurement that bears relation to the visibility of the twin peak

sign. All parties agreed that the twin peak sign is widely used and reliable when seen.

On direct examination, Dr. Patten had read from Dr. Callen's book ("the OB-GYN

Bible") and referenced sections directly before and after a section on the twin peak sign.

These facts placed a discussion of the twin peak sign well within the scope of Dr.

Patten's direct questioning. It was proper to permit inquiry on the topic during cross-

examination.

                                               19
No. 32512-1-III
Pitts, et al. v. Inland Imaging, LLC, et al.


       The trial court did not err in overruling the objection. Discussion of the twin peak

sign was proper subject matter for testimony concerning a radiologist's standard of care.

       Appellants have not demonstrated any error occurred at trial, let alone any error of

such significance that it calls into question the jury's verdict. This case was well tried

and both sides presented evidence concerning the circumstances leading to the tragic

death of Taylor Pitts. The jury concluded that negligence by Inland had not been

established. That verdict was the result of a fair trial process.

       Affirmed.

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

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

2.06.040.




WE CONCUR:



       Fearing,p.


9,,2y .(J=
       Pennell, J.




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