 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RAUL SWAIN and KATHLEEN
SCHONS, individually and as guardians            No. 71616-6-1
of minor child JAXOM SWAIN-SCHONS
                                                 DIVISION ONE
                    Respondents,                                                ZJ~*
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                                                 UNPUBLISHED OPINION                   p1',"-,
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SWEDISH HEALTH SERVICES d/b/a                                                    H":    rx's'
SWEDISH MEDICAL CENTER, and
                                                                                         '-"', '*
MICHAEL C. SHANNON, M.D.,                                                        o


                    Appellants.                  FILED: June 15, 2015


      Trickey, J. — Generally all relevant evidence is admissible, except as

limited by constitution, statute, or other evidentiary rule. ER 401. The decision to

exclude or allow testimony in rebuttal in a medical malpractice case depends in

part on whether the proponent intentionally violated discovery rules and whether

there was any prejudice in permitting such testimony. Here, the plaintiffs disclosed

a treating physician as a witness and submitted her report months before trial to

the defendants. Because the defendants were already aware of the physician's

conclusions from her report, there was no prejudice.        Her testimony merely

corroborated her report, which was also admitted into evidence.

       Nor did the trial court abuse its discretion in the remaining evidentiary

rulings the defendants raise in this appeal. Affirmed.

                                      FACTS

       This is a medical malpractice case arising out of medical care Dr. Michael

Shannon and Swedish Medical Center (collectively, Shannon) provided to Jaxom

Swain-Schons.
No. 71616-6-1/2


       On August 14, 2011, Jaxom, then 20 months old, experienced a febrile

seizure.   Paramedics arrived and Jaxom appeared to be stabilized. After the

paramedics left, Jaxom had a second seizure. The parents took him to Swedish

Mill Creek Emergency Department.        While there, Jaxom had another febrile

seizure. The nurses at Mill Creek were unable to install an intravenous (IV). The

clinic decided to transfer Jaxom to Swedish First Hill (Swedish) Pediatric Intensive

Care Unit in Seattle.

       Swedish sent its pediatric transport team, consisting of a nurse, Dr.

Shannon, and a respiratory therapist to Mill Creek. On arrival there, the transport

nurse placed a peripheral IV in one ofJaxom's hands and readied him for transport.

During the ambulance ride to Swedish, the peripheral IV failed.

       At the hospital, after several unsuccessful attempts to place another

peripheral IV in Jaxom, a decision was made to install a central line by placing a
femoral central venous catheter. Dr. Shannon performed the installation.

       Jaxom was discharged the following day. On August 18, his parents

returned to Swedish because Jaxom was complaining of neck pain and a

headache, and was walking funny at times with a wide gate.            Physicians at

Swedish informed Jaxom's parents that the symptoms were probably a result of

the anti-seizure medication and should dissipate within a few days.

       Jaxom continued to experience these symptoms and began behaving

abnormally. His body would sometimes stiffen and he experienced episodes of
pain causing him to cry uncontrollably. In December, a neurologist saw Jaxom,
but did not find any cause for Jaxom's symptoms.
No. 71616-6-1/3


      On February 29, 2012, the parents noticed a small bump on Jaxom's neck,

near his collarbone. Jaxom's pediatrician prescribed antibiotics. Later that day,

the cyst had moved and the parents took Jaxom to the Everett emergency clinic.

X rays revealed two long metal wires in his body.

      Jaxom was transferred by ambulance to Seattle Children's Hospital. Dr.

George Drugas, a pediatric surgeon at Children's Hospital, removed a guidewire

from Jaxom's body on March 1, 2012.

      Jaxom and his parents filed suit. The jury returned a verdict of $500,000

for Jaxom and $250,000 each for his parents. Shannon timely appeals.

                                    ANALYSIS

       Shannon contends the trial court made multiple evidentiary errors.

Specifically, Shannon contends that the trial court erred by permitting one of
Jaxom's treating physicians to testify in rebuttal, excluding his expert metallurgist
from testifying regarding reports of product failure, admitting evidence regarding
the length of his shift rotation, and a checklist used by another hospital for similar
procedures.

       Evidentiary decisions are within the sound discretion of the trial court. A
trial court abuses its discretion when its decision is manifestly unreasonable or

based on untenable grounds. Silas v. Hi Tec Erectors, 168 Wn.2d 664, 668-69,
230 P.3d 583 (2010).

Rebuttal Testimony

       During the plaintiffs' case-in-chief, the plaintiffs informed the court that Dr.
Teresa Chapman, a radiologist at Children's Hospital, might becalled as a rebuttal
No. 71616-6-1/4



witness depending on the testimony of Dr. Timothy Larson, the defense's expert

radiologist. The defense argued that Dr. Chapman was merely a treating physician

and should not be called on rebuttal. The following colloquy occurred:

      THE COURT: It seems, if what Dr. Chapman is going to say, is she
      looked at these x-rays and they were not coiled, they were straight
      wires, that would then rebut presumably your Dr. Larson who is going
      to say he looked at the fluoroscopy of the x-ray or something and
      saw coiled architecture.

      [DEFENSE COUNSEL]: Right

      THE COURT: Right now we don't have anybody that has actually
      testified that anybody saw coiled architecture.

      [DEFENSE COUNSEL]: Well, nobody has testified, that's right. We
      only have the records.
             That is why I think you are perfectly entitled to call her in their
      case in chief. They should. She is obviously available. He told you
      she was. She should come in and testify. And we will listen to what
      she says and why, and then when we have Dr. Larson aboard, he
      will testify as he did in his deposition.
               So if you look at the test of rebuttal, that wouldn't be rebuttal
       under these circumstances.

      THE COURT: It would be rebuttal if nobody has testified yet it is
       coiled, right? So then she is going - your witness is going to say, we
       looked at the x-ray, it is coiled. She is going to come in afterwards
       and say, no, I looked at the x-ray and it was not coiled. That is
       rebuttal.

       [DEFENSE COUNSEL]: Well, but that is true, technically that would
       be rebuttal. But the rule on rebuttal, as I understand it, it is something
       that can't be reasonably anticipated.
               We have known from the get-go what the two theories of the
       case are. They know and they had Dr. Drugas talk today about it
       being a straight wire. That is what he said. And he said he looked
       at the fluoroscopy. So they have had that on there.
               Nowwe have Dr. Larson coming in, he says, no, I have looked
       at it and it is coiled.
                 Ijust think if they really want to get Dr. Chapman's testimony,
       and she is a factual witness, she only read, she only read the plane
       films.™

1 Report of Proceedings (RP) (12/11/13) at 179-181.
                                            4
No. 71616-6-1/5




          Dr. Chapman, a radiologist at Seattle Children's Hospital, testified regarding

her reading of the X rays. She testified that the X rays taken from the Everett clinic

indicated that there was a wire protruding upward, "tenting the skin."2 She further

stated:


          And then this is the smooth linear course of this radio density, this
          wire, which courses up into the head. It is just a nice example when
          you magnifies these up the margins of the wire are very smooth,
          which, again, this is why I am calling them wires. This is what wires
          look like. They are radio dense with very smooth margins.[3]

The plaintiffs then inquired what Dr. Chapman thought regarding the defense's

theory that the objects were not wires, but the coiled portion separated from the

guidewire. Defense counsel objected.

          After an unreported sidebar discussion, plaintiffs' counsel asked the

following question:

          Dr. Chapman, since learning about the defense theory of this coiled
          portion coming off, have you examined a guidewire to see the coiled
          portion separated from the central wire?[4]
Dr. Chapman answered affirmatively.               The plaintiffs then asked if what Dr.

Chapman had seen on the X rays taken was just a coil and not a guidewire. She

responded:

          It is not possible. I have actually seen what a coil looks like under a
          radiograph. It has a different texture to it. It literally looks like a Slinky
          kind of coil. It is radio dense but not quite as dense as this and it
          does not have smooth margins. Nor would it act firmly. These have
          some strength to them. A coil is flimsy and would be wavy, might
          even collapse. Certainly couldn't lift skin up like what we are seeing
          on the radiograph. These are wires.[5]

2 RP   (12/18/13)   at   68.
3 RP   (12/18/13)   at   73.
4 RP   (12/18/13)   at   74.
5 RP   (12/18/13)   at   74.
No. 71616-6-1/6




Dr. Chapman's answer is consistent with her report dated February 29, 2012,

wherein she stated: "There are 2 thin metallic densities in the chest, consistent

with wires, as seen on the comparison study."6

       Her testimony is likewise in accord with the written report by Dr. John Ho,

who along with Dr. Drugas removed one of the two wires from Jaxom:

       There is a retained guidewire coursing the sigmoid sinus on the right
       side down the internal jugular vein through the superior vena cava
       and ending in the right atrium. The wire has been retrieved with a
       trilobedm ensnare. Follow up venogram shows no evidence of
       extravasation. The wire was removed entirely.171

       This court reviews decisions regarding rebuttal testimony for abuse of

discretion. State v. White. 74 Wn.2d 386, 394-95, 444 P.2d 661 (1968). Such

abuse occurs only when no reasonable person would take the adopted view.

Vasauez v. Martin. 46 Wn. App 480,483, 731 P.2d 510(1986). Rebuttal testimony

may be somewhat cumulative.

       Ascertaining whether the rebuttal evidence is in reply to new matters
       established by the defense, however, is a difficult matter at times.
       Frequently true rebuttal evidence will, in some degree, overlap or
       coalesce with the evidence in chief. Therefore, the question of
       admissibility of evidence on rebuttal rests largely on the trial court's
       discretion, and error in denying or allowing it can be predicated only
       upon a manifest abuse of that discretion.

White. 74 Wn.2d at 395.

       Here, Dr. Chapman's testimony directly rebutted Dr. Larson's testimony.

Dr. Chapman testified that based on her review of the images and her expertise,
the wires were straight, not uncoiled, and that uncoiled wires would not have



6 Exhibit (Ex.) 6-00009.
7 Ex. 6-00014.
No. 71616-6-1/7


behaved in the manner that these wires did inside Jaxom's body. She described

the object as "radio dense with very smooth margins" and that only a wire would

be firm enough to tent the skin as was done here.8

       There was no prejudice or surprise to the defendants. Dr. Chapman was

disclosed as a possible primary witness in April 2013.        Her name was on the

medical records from Children's Hospital, which the defendants had received even

earlier.

           Shannon cites Kremer v. Audette. 35 Wn. App. 643, 648, 668 P.2d 1315

(1983), for the proposition that a plaintiff is not permitted "to present. . . evidence

cumulatively at the end of [a] defendant's case."9 But in the trial court's view, Dr.

Chapman's rebuttal testimony was proper because no one had yet testified to the

object inside ofJaxom as being a coil rather than a wire. Defense counsel agreed
that no one had testified but argued that the record so indicated. There was no

abuse of discretion.

           Defense counsel argued that Dr. Chapman derived her opinion notfrom her

treatment but from experiments run afterwards. But Dr. Chapman's opinion that

the objects in Jaxom's body were wires is clearly stated in her report while she was
a treating physician. Even if the evidence iscumulative to what was in the admitted
reports, the admission of cumulative evidence is a matter within the court's
discretion. Christensen v. Munsen, 123 Wn.2d 234, 241, 867 P.3d 626 (1994).

           Atreating physician maytestify as to both fact and medical opinion. Carson
v. Fine, 123 Wn.2d 206, 215-16, 867 P.2d 610 (1994). Here, unlike the cases cited


8 RP (12/18/13) at 73.
9Appellant's Reply Br. at 5.
No. 71616-6-1/8


by Shannon, there was no undue surprise or prejudice. Dr. Chapman's testimony

regarding any secondary action she might have taken after reviewing defense

testimony (that what remained in Jaxom was a coil and not a guidewire) was

consistent with the evidence that defense knew existed, i.e., wires were left in

Jaxom.

ER703

      Defense retained metallurgist Keith Cline as an expert witness. In voir dire

outside the presence of the jury, defense counsel asked Cline about MAUDE

(Manufacturer and User Facility Device Experience) reports concerning Cook

guidewires. Cline testified that as a metallurgical engineer, he had reviewed

MAUDE reports, provided by defense counsel, to obtain background on the history

of the wire device. None of the cases in the MAUDE reports were exactly like the

present case.

         In cross-examination on voir dire, Cline testified that he did not rely on the

MAUDE reports for the specific failure of the guidewire in this case. In response

to questioning from the court, Cline noted that there were no instances where the
inner coil separated from the outer coil in the MAUDE reports.

         Plaintiffs moved to restrict the MAUDE reports based on federal law and ER

703. The court asked the lawyers to limit their arguments to whether or not the

reports should be excluded under ER 703. ER 703 provides:

                The facts or data in the particular case upon which an expert
         bases an opinion or inference may be those perceived by or made
         known to the expert at or before the hearing. If of a type reasonably
         relied upon by experts in the particular field in forming opinions or
         inferences upon the subject, the facts or data need not be admissible
         in evidence.


                                            8
No. 71616-6-1/9




         The trial court granted the motion to exclude the MAUDE reports based on

ER 703 for the following reasons:

                 My impression of him on the stand was he didn't even know
         about a MAUDE report until he was presented it from defense
         counsel. It is possible that he said, well, you do research and you try
         to find out anything you can about product failures. He said I think
         probably other metallurgists probably do that too.

                I think the rule is clear that it's not enough that the particular
         expert relied on this [sic] facts or data that were given to him by
         defense counsel, but the proponent of the testimony must show the
         experts in the witness's field in general reasonably relied on such
         material in their own work for purposes other than litigation. That is
         the thing I don't think has been established, that other metallurgists
         rely on MAUDE reports for purposes other than litigation. Ifeel that
         that has not been, that standard has not been met.

                 And it bothers me as well that there is really no other reporting
         here.    I don't know how he can rely on them when there is no
         reporting here that has a failure similar where we are talking about
         the inner core separating from the outer core.

               He does have reports that say something was cut with a
         needle or scalpel or itwas cut and the ends were frayed. But I don't
         know how that informs his decision on whether or not - I don't know
         why I am forgetting that word, the places where they are soldered
         together -- welds - that the welds had failed.[10]
         This court reviews the trial court's exclusion of this testimony to determine

whether the exclusion was manifestly unreasonable or based on untenable

grounds or reasons. State v. Roberts. 142 Wn.2d 471, 520, 14 P.3d 713 (2000).
          Because ER 703 is concerned with the trustworthiness of the resulting

opinion, it is notsufficient to showthat the particular expert in question customarily
relies on the facts and data in question. A proponent of the testimony must show

that experts in the witness's field, in general, reasonably rely on such material in

10
     RP (12/16/13) at 70.
No. 71616-6-1/10


their own work, for reasons other than litigation. In re Detention of Marshall. 156

Wn.2d 150, 161, 125 P.3d 111 (2005).

       The trial court's decision found that the reports were not reasonably relied

upon by experts and thus insufficient to support the expert's opinion.           In re
Detention of McGarv, 175 Wn. App. 328, 341, 306 P.3d 1005. review denied, 178

Wn.2d 1020, 312 P.3d 651 (2013). The trial court did not abuse its discretion.

Checklist and Length of On-Call Shift

       Shannon also argues that the trial court erred in denying his motion to
exclude the testimony regarding both the length of his on-call shift and that
Children's Hospital used a checklist when performing this type of procedure.
Shannon contend that this testimony was irrelevant and prejudicial.

       In ruling against this motion, the trial court stated:
               The fact that Dr. Shannon didn't use a checklist -- Dr.
       [Kenneth] Schenkman is an expert and isn't that the reason he is
       being called is to say this is what Dr. Shannon didn't do, and in fact,
       my expert opinion, if he had done X, Yand Z he could have avoided
       this mistake. That is tantamount to a checklist. That is his opinion
        about how to avoid leaving objects in a patient, presumably.1111
The trial court noted that defense could elicit from Dr. Schenkman that a checklist
is not required and, therefore, not using a checklist does not violate the standard
of care. The court further noted, "That doesn't mean he can't opine that would
 have been one way to mitigate the problem, is what Iam saying. That is why Iam
denying the motion."12 For similar reasons, the court permitted defense to admit
 evidence that Dr. Shannon had worked a 48-hour shift and was in his 41st hour.



 11 RP (12/9/13) at 91-92.
 12 RP (12/9/13) at 92.
                                           10
No. 71616-6-1/11


       Generally all relevant evidence is admissible, except as limited by

constitution, statute, or other evidentiary rule. ER 402. Evidence is relevant if it

has a "tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence." ER 401. Thus, in a medical malpractice suit, physicians may testify

as to their professional conduct that is repeatedly and consistently performed when

treating persons with similar symptoms so long as it is relevant.

       The plaintiffs' expert, Dr. Kenneth Schenkman, a pediatric critical care

doctor at Children's Hospital, reviewed the care provided by Dr. Shannon. Dr.

Schenkman stated that Children's Hospital used a checklist in response to a

question from counsel about how physicians at Children's Hospital ensure that a

guidewire is removed after a procedure.

       Here, the testimony was proffered to counteract the defense's theory that

an experienced doctor, such as Dr. Shannon, would not have left a guidewire in a

patient. While this statement might be true in ordinary circumstances, the length

of Dr. Shannon's shift (41st hour of a 48-hour on-call shift) and not using a checklist

could explain why no one discovered the guidewire in Jaxom until months later.

       On cross-examination, defense counsel inquired about the checklist. Dr.

Schenkman specifically stated that he was not telling the jury that the standard of

care required Dr. Shannon to use a checklist. Dr. Schenkman also stated there

were no rules about the amount of time physicians can work. On redirect, plaintiffs'

counsel elicited that Children's Hospital does not have 48-hour shifts.             Dr.

Schenkman testified that the checklist was just a tool to help avoid errors.



                                          11
No. 71616-6-1/12


      The trial court did not abuse its discretion in admitting this relevant

testimony.

      Because we find that the trial court did not abuse its discretion in the

evidentiary rulings challenged on appeal, we need not address the plaintiffs'

argument that the physician was liable as a matter of law. We affirm the judgment.




                                                  I/ttkey iJ

WE CONCUR:




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